RE SITI KASTURI

HCAL 1994/2018

[2021] HKCFI 3599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1994 OF 2018

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D E C I S I O N

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1.  On 17 June 2021 I refused to grant leave to the Applicant to apply for judicial review of the decisions 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 issued on 9 August 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 2 July 2021, and hence she was some 5 weeks 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 5 weeks must be considered as substantial or inordinate, for which she explained at the hearing of her summons that she only received the decision in the mail a couple of days before she issued her summons on 9 August 2021, which if true would have put the date of her receipt of the decision around 7 August 2021.

5.  The court record shows that the decision was sent on the same day of 17 June 2021 to the Applicant’s last reported address without being returned through undelivered post, and in the absence of any details or documentary evidence such as the envelop which contained the decision to show the actual postmark to substantiate her bare assertions, I find it difficult to believe that it would have taken some 5 weeks for the decision to reach her in the mail. In the circumstances I am not satisfied that the Applicant has provided any good reason for her serious 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 or her affirmation, and at the hearing of her summons she could only repeat her claim as before of fear of being killed by her step-father for failing to assist him in repaying his debts upon her return to Indonesia. 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.