RE INTAN-DWI-NOPITASARI

HCAL 954/2021

[2022] HKCFI 2657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 954 OF 2021

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D E C I S I O N

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1.  On 16 September 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her appeal/petition regarding her non-refoulement claim upon finding that none of her proposed grounds were reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in her intended application.

2.  The Applicant now by a summons issued on 5 May 2022 seeks extension of time to appeal against that decision, as the 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of the High Court, Cap 4A ended on 30 September 2021, and hence she was more than 7 months late with her intended appeal.

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of more than 7 months must be considered as very substantial and inordinate, for which she explained at the hearing of her summons that she was not aware of the procedural rules, and that having been detained at the Castle Peak Bay Immigration Centre (“CIC”) she needed to seek legal assistance for her application which took time to find the right lawyer that she could afford.

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, while ignorance of the rules can never be accepted as any excuse for their non-compliance, and although I accept that the Applicant as an unrepresented litigant detained at CIC did require assistance for her litigation, I am however not satisfied that in her circumstances she has provided a good or valid reason for her such serious delay of more than 7 months.

6.  More significantly, the Applicant has failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable in her summons, and that at the hearing she could only repeat her claim as before of fear of being killed if refouled to her home country. As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in her intended appeal.

7.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse her application for extension of time to appeal, and dismiss her summons.