RE YULIANI

HCAL 978/2021

[2022] HKCFI 2955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 978 OF 2021

_____________

_____________

_____________

D E C I S I O N

_____________

1.  On 24 August 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“Director”) refusing to allow her to re-open her non-refoulement claim due to her failure to submit her Non-refoulement Claim Form (“NCF”) upon finding that she had failed to first launch an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision under Section 37ZS(1) of the Immigration Ordinance, Cap 115 as part of the two-tier process of her non-refoulement claim under the Unified Screening Mechanism (“USM”) in place since March 2014, that in any event she had also failed to put forth any proper ground for the intended challenge, and that there was no reasonable prospect of success in her intended application.

2.  The Applicant now by a summons issued on 13 May 2022 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 7 September 2021, and hence she was more than 8 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 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 more than 8 months must be considered as very substantial and inordinate, for which she explained at the hearing of her summons that she had been detained at the Castle Peak Bay Immigration Centre (“CIC”) until 16 July 2021 when she was released, and that thereafter she did inform the Immigration Department of her new residential address, but still she never received the decision in the mail.

5.  The court record shows that the decision was re-sent on 1 September 2021 to the Applicant’s then reported address at Sham Shui Po as provided by the Immigration Department without being returned through undelivered post, and hence it should have reached the Applicant according to the address provided by her, and in the absence of any further evidence to corroborate her bare assertions, I am not satisfied that she has provided a good or valid reason for her serious delay.

6.  More significantly, nor did the Applicant 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 in her affirmation, and at the hearing of her summons she just stated that she cannot return to her home country as she no longer has any family there. 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.