RE DIL KUMARI KARKI

HCAL 604/2018

[2019] HKCFI 2730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 604 OF 2018

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DECISION

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1.  On 20 February 2019 Deputy High Court Judge Josiah Lam refused to grant leave to the Applicant 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 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 Board or in its decision, and that there was no reasonable prospect of success in her intended application.

2.  The Applicant now by a summons issued on 5 September 2019 seeks leave to appeal against that decision out of time, 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 6 March 2019, and hence she was late by five months with her intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal 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 five months must be regarded as very substantial or excessive, for which she explained that she was arrested in 2018 for having undertaken unauthorized employment for which she was subsequently convicted and sent to prison for 12 months, and upon release from prison she was then detained at the Castle Peak Bay Immigration Centre (“CIC”) where she has since been kept, and that it was only then she was told of the decision when she was already way out of time to appeal.

5.  The Applicant however did not produce any further particulars or documentary evidence in support of her claim of being in prison at the material time, but even if it was indeed the case and with the inevitable restrictions whilst in prison, it cannot in my view be accepted as a valid reason for such a serious delay.    

6.  More importantly, nor did she in her summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and when she was invited to do so at the hearing of her summons, she merely repeated her claim that her life would still be in danger in her home country, and hence she should be allowed to stay in Hong Kong. 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, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse her application for leave to appeal out of time, and dismiss her summons.