RE RITA BUDIARTI

HCAL 87/2021

[2021] HKCFI 3587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 87 OF 2021

_____________

_____________

D E C I S I O N

_____________

1.  On 25 May 2021 I refused to extend time to the seriously late application of the Applicant for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing her appeal regarding her non-refoulement claim upon finding that there was no good reason for her extremely serious delay, 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 (“the 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 21 June 2021 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 High Court, Cap 4A had expired on 8 June 2021, and hence she was 13 days 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 13 days cannot be said to be insignificant, for which she explained at the hearing of her summons that she never received the decision in the mail, and that it was only later when she reported on her recognizance when she was informed by her immigration officer, but by then she was already out of time with her intended appeal. She did not however provide any further details or evidence in support of her explanation.

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, and in the absence of any details or documentary evidence to corroborate her bare assertions, I am not convinced that the Applicant has established any good reason for her delay.

6.  More importantly, 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 either in her summons, while in her affirmation she stated that there is a good ground of appeal but without explaining what it is, nor was she able to do so at the hearing of her summons. 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.