IKA ERNAWATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2303/2020

[2025] HKCFI 4168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2303 OF 2020

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D E C I S I O N

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1.  On 5 March 2025 Deputy High Court Judge Reuden Lai refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim upon finding that none of the grounds put forward by her 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 19 May 2025 seeks leave to appeal against that decision out of time, as the 14-day period after the decision within which to file her appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap. 4A expired on 19 March 2025, and hence she was some 2 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 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 2 months must be considered as substantial and inordinate, for which she explained at the hearing of her summons that as she has been detained at Nei Kwu Correctional Institute and had to seek legal assistance from outside and for which required time and money, and which all accounted for the delay.

5.  The court record shows that the decision was sent on the same day of 5 March 2025 to the Applicant’s then detention at Nei Kwu Correctional Institution where assistances from welfare officers stationed there were readily available to the Applicant, and while she was entitled to seek legal assistance from outside, that by itself cannot be accepted as any valid justification for her serious delay.

6.  More importantly, the Applicant also 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 in her affirmation she just made the following bare and baseless assertions without any necessary or relevant details or particulars that may amount to reasonably arguable grounds for her intended appeal:

“I am the Applicant herein. The decision made by the High Court Judge Reuden Lai has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it is not sufficient that I was a litigant in person and unrepresented. I did not receive any correspondence from the Court regarding my Judicial Review being refused. I humbly request the Court to allow my appeal out of time and give me a chance to explain.”

7.  The fact is that the Applicant did appear before the Learned Judge for her leave application during which she was given every opportunity to make representations for her application, while at the hearing of her present application she merely repeated her non-refoulement claim as before without putting forward any reasonably arguable basis for her intended appeal. 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.

8.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse to grant leave to the Applicant to appeal out of time, and dismiss her summons.