RE PAYARA MST RABAYA AKTER

HCAL 1111/2018

[2021] HKCFI 848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1111 of 2018

________________________

________________________

______________

DECISION

______________

Background

1.  On 22 October 2020, I refused to grant leave to the applicant to apply for judicial review (“the Court’s order”) against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 11 June 2018.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 19 September 2017 rejecting the applicant’s non-refoulement claim.

2.  The court refused to grant leave to the applicant to apply for judicial review for reasons stated in [11-19] of its decision (Form CALL-1).  Significantly the court found that the applicant’s intended application for judicial review had no reasonable prospect of success [20].

3.  By a summons filed on 10 December 2020, the applicant applied for extension of time to appeal against the Court’s order.  The applicant had 14 days from that order to apply to appeal to the Court of Appeal.  She did not do so.  She now requires leave to extend time to appeal against that order out of time. The 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of High Court ended on 5 November 2020.  She was therefore late by more than 1 month with her intended appeal.

4.  In her summons and supporting affirmation, the applicant stated that she did not receive the Court’s order.  She was told by an immigration officer to submit her appeal paper, then she came to Court to make the application.  At the hearing, she said she had moved home from Yuen Long to Yau Ma Tei.  She only learnt about the Court’s order when she received a call from her ex-neighbour who received the Court’s letter.  Her ground of appeal was that she wanted to stay longer in Hong Kong

Discussion

5.  The principles governing the exercise of the Court’s discretion to extend time to appeal are well-established.  The Court would consider: (1) the length of the delay; (2) the reasons for delay; (3) the merits of the intended appeal; and (4) any prejudice to the intended respondent (although the lack of prejudice does not mean that time should be extended).

Length of delay

6.  As for the period of delay, the intended appeal is more than 1 month late.  The delay is not a short one.

Reasons for delay

7.  As for the reasons for the delay, the applicant explained that she did not receive the Court’s order (which was sent to her by post to her reported address) as she had moved to a new address.  She learnt about the Court’s order from her ex-neighbour.  Her explanation in court is not consistent with what was stated in her summons.  I reject her explanation.  Even assuming it is true, it is the duty of a litigant to give the Court an address and update it, to which court’s notice can come to his/her attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant.  Moreover, the applicant did not inform the Court her new address promptly.  She should bear the consequence.  I do not find the delay excusable.

Merits of intended appeal

8.  The merit of the intended appeal is a more important factor.  It is well-established that an application for leave to issue judicial review is not an opportunity for a re-hearing of the claim.  The primary decision makers are the Director and the Board.  Assessment of evidence and evaluation of risk are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  The applicant did not advance any valid grounds for judicial review.  Her intended judicial review had no prospect of success and was unmeritorious. 

9.  The applicant did not put forward any viable grounds of appeal or identify any errors in the Court’s decision.  Her desire to stay in Hong Kong is not a viable ground of appeal.  Her intended appeal has no merit at all.

Conclusion

10.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant any extension of time.  The summons dated 10 December 2020 taken out by the applicant is dismissed.