RE ABOGADO EDNA BARRIENTOS

HCAL 139/2019

[2022] HKCFI 2564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 139 OF 2019  

________________________

________________________

________________________

D E C I S I O N

________________________

1.  On 26 November 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 17 December 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 the High Court, Cap. 4A ended on 10 December 2021, and hence she was 7 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 7 days may not be considered as significant, for which she did not provide any explanation in her summons, nor did she file any affirmation in support or attend the hearing of her summons to proffer any 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, but given the relative insignificance of her delay, I propose to focus on the prospect of her intended appeal.

6.  However, 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, and as noted above nor did she file any affirmation in support or attend 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 refuse her application for extension of time to appeal, and accordingly dismiss her summons.