RE AKTER SHAFALI

HCAL 420/2018

[2019] HKCFI 2200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 420 OF 2018

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DECISION

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1.  On 21 June 2019 I refused to grant leave to the applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing 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 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 dated 16 July 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 5 July 2019, and hence she was late by 11 days 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 M K 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 11 days may not be regarded as substantial or excessive, for which she explained at the hearing of her summons that she never received the decision and hence was not aware of it until later when she was informed by an immigration officer when she reported for her recognizance.  The court record shows that the decision was in fact sent to her last reported address on the same date and has not been returned undelivered, but given the relatively insignificant delay, I propose to focus on whether there is any merit in her intended appeal.

5.  She however did not either 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 at the hearing she conceded that she has not found any error in the decision, but that as her problem back home has still not resolved,she just wants to be given more time to stay in Hong Kong.  As such and in the absence of any error being shown by the applicant in the decision, I do not see any prospect of success in her intended appeal. 

6.  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.