RE KHATUN ARZINA

HCAL 2798/2018

[2021] HKCFI 3153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2798 OF 2018

_____________

_____________

D E C I S I O N

_____________

1.  The Applicant, by summons dated 16 August 2021, applies for extension of time to appeal against the decision of Deputy High Court Judge To (‘the Court”) given on 31 May 2021 refusing to grant leave to the Applicant for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing her appeal from the decision of the Director of Immigration (“the Director”) 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 14 June 2021 and hence she was 2 months late with her intended appeal.

3.  In considering whether to extend time for appealing against a decision refusing to grant leave to apply for judicial, 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, the delay of 2 months is not insignificant. The Applicant’s explanation was that she was in prison when the decision of the Court was made on 31 May 2021 and because of that she did not receive the decision of the Court.  She further explained that her prison sentence finished on 2 August 2021, but that she was detained in CIC and was not released until 11 August 2021.  During the time she was in prison and in CIC detention, she did not receive the decision of the Court, nor was she informed about it by any prison officer.

5.  The court record shows that the decision of the Court was sent on the same day it was made to the two reported address of the Applicant, one in Alhambra Building in Nathan Road, and the other an address in Shanghai Street. However, earlier letters sent to the Applicant at both of these addresses in May 2021 informing her of dates of hearings had been returned to the court as undelivered mail.

6.  If the Applicant was in prison, that may well explain why the earlier letters to the Applicant had been returned undelivered.  It may also explain the delay.

7.  Even if the delay can be explained by the Applicant, the prospect of the appeal will still have to be considered.  In this respect, the Applicant has lodged a 2 page document containing 8 paragraphs with her application for extension of time entitled “Grounds on which relief is sought”.  The first 5 paragraphs explained the delay in making the intended appeal.  Paragraphs 6 and 7 regurgitate the factual basis of her genuine claim for non-refoulement, the danger she faced in Bangladesh and how she managed to escape.  Lastly she reiterated that those factual basis are sufficient grounds to justify the court to allow her appeal.

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.  I am of the view that there is no merits here.  The Applicant provided no reasonably arguable grounds for judicial review.  An appeal against the refusal of leave for judicial review is not an occasion for the Applicant to regurgitate arguments already advanced and rejected.  On appeal, the decision of the Court would only reversed if it could be demonstrated that there were errors in law, or that the Court failed to take into account relevant matters or took into account irrelevant matters, or that the decision was otherwise plainly wrong.

10.  It is incumbent on the Applicant to point out with sufficient particularity the errors alledgedly made by the Court in assessing the Board’s decision.  This she has not done.

11.  In the premises, it would be futile to extend time for what would appear to be a hopeless appeal.  I therefore decline the application for extension of time to appeal against the decision of the Court and dismiss the summons.