RE KAKOLE

HCAL 780/2019

[2022] HKCFI 290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 780 OF 2019  

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D E C I S I O N

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1.  On 1 June 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing her appeal regarding 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 of Immigration (“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 16 July 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 ended on 15 June 2021, and hence she was 4 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 4 weeks must be considered as substantial or inordinate, for which she just stated in her supporting affirmation that she did not receive the decision within reasonable time without any further details or documentary evidence such as the envelop which contained the decision to show the actual postmark, but at the hearing of her summons she clarified that she did receive the decision in the mail on time but as she was unrepresented she was not aware of the required 14-day period to file her appeal which explained for her delay.

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address, and as ignorance of the procedural rules can never be accepted as a valid reason or excuse for their non-compliance, I am not satisfied that the Applicant has provided any good reason for her 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 just stated that she still has problem in her home country that she wants to have more time to remain in Hong Kong. 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.