RE BUI THI LIEN

HCAL 1216/2018

[2021] HKCFI 3083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  1216 OF 2018

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D E C I S I O N

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The application

1.  The Applicant, by summons dated 31 August 2021 applies for extension of time to appeal against the decision of Deputy High Court Judge C. P. Pang (“the Court”) given on 1 February 2021 refusing to grant leave to the Applicant for judicial review of the decision of the Torture Claims Appeal Board in dismissing her appeal from the decision of the Director of Immigration regarding her non-refoulement claim.

2.  The 14 day period for the Applicant to file her appeal against the decision of the Court ended on 15 February 2021 and hence she was over 6 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, a 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 extension of time were granted.

4.  In the Applicant’s case, this delay of over 6 months is not insignificant.  The Applicant explained in her affirmation in support that she had no financial means to obtain legal advice regarding the procedure of appeal and once the 14 day limit had passed, she thought she had lost her right to appeal with no further remedy available.

5.  The court record shows that the decision of the Court was sent on the same day the decision was made to the last reported address of the Applicant without being returned to the court as undelivered post.

6.  The explanation given by the Applicant as to the delay impliedly suggests that the Applicant did know of the 14 day limit for appeal but did nothing about it during the 14 days because of her lacking financial means.  There was no explanation given by the Applicant as to why she did not lodge her appeal within that 14 day limit.  I am therefore not satisfied that the Applicant has provided any good explanation or reason for the delay.

7.  As for the prospect of the intended appeal, the Applicant stated in paragraph 3 of her affirmation in support that she understood that there was “a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”.  However, no particulars have been given by her as to what this “good ground of appeal” was.

8.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

9.  This being an application for extension of time to appeal against the decision of the Court, it is for the Applicant to show that there is an arguable appeal.  Her bare assertion that there is a good ground of appeal but which is unsubstantiated with particulars cannot satisfy that onus.

10.  In the premises it would be futile to extend time for what would appear to be a hopeless appeal.

11.  Accordingly, I decline the application for extension of time to appeal against the decision of the Court and dismiss the summons.