SRIATIN NGATIMIN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 169/2019

[2023] HKCFI 1167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 169 OF 2019

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BETWEEN

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D E C I S I O N

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1.  On 17 October 2022 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 her 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 16 February 2023 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 expired on 31 October 2022, and hence she was some 3 ½ 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of 3 ½ months must be considered as very substantial and inordinate, for which she explained in her affirmation that she never received the decision in the mail, and that it was only later when she reported on her recognizance to the Immigration Department that she was informed so informed by her immigration officer, but by then she was already out of time with her intended appeal.

5.  In her later written submissions dated 10 March 2023 the Applicant also disclosed that she is suffering from cancer and has produced some appointment slips for medical attendances or examinations at various hospitals but without providing any further details or particulars as to how her such medical conditions could or might have prevented her from filing her notice of appeal within the required period or to cause such serious delay with her intended appeal, nor did she subsequently attend the hearing of her summons without explanation.

6.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address which is the same as that stated in her present application and without being returned through undelivered post, and in the absence of any evidence to suggest that she might have been hospitalized or incapacitated by her claimed medical condition at the material time to prevent her from filing her notice of appeal within the required period, I am not satisfied that the Applicant has provided a proper justification for her serious delay.

7.  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 either in her summons or her affirmation in which she complained of not being able to read or write English and hence was not able to understand the decision properly or to elaborate on the errors in the Board’s decision, but given the fact that she clearly had legal assistance in her present application but still failed to put forth any proper grounds for her intended appeal, and that she also failed to 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.

8.  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.