RE MANUEL AMELYN TORRES

HCAL 266/2018

[2021] HKCFI 1602

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 266 OF 2018

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D E C I S I O N

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1.  On 6 July 2020 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing 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 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 26 March 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 20 July 2020, 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 extremely substantial and excessive, for which she explained both in her affirmation and at the hearing of her summons that she had earlier lost her original recognizance paper issued by the Immigration Department for her status, but when she produced a photocopy thereof at the court Registry for the filing of her intended appeal, she was told that photocopy of her recognizance would not be accepted, and so she had to sort out the matter at the Immigration Department for a replacement, but by the time she was issued a new recognizance paper which she then presented to the Registry, she was by then already out of time for her intended appeal.

5.  The court record shows that the decision was sent on the same day to the applicant’s last reported address without being returned through undelivered post, and assuming that she did before expiration of the 14-day period expired on 20 July 2020 attend at the Registry to file her intended appeal but was as alleged refused due to the fact that her recognizance paper was a photocopy, I found it hard to believe that it would have taken as many as 7 or 8 months for the Immigration Department to issue her the new recognizance paper to enable her to present it at the Registry for the filing of her notice of appeal. As such I am not satisfied that the applicant has provided a good reason for her such serious delay.

6.  More importantly, nor did she put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in her summons or affirmation, and at the hearing of her summons she merely stated that she does not want to return to her home country as she just wants to stay in Hong Kong. In the circumstances, 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, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse her application for extension of time to appeal, and dismiss her summons.