RE YUYUN

HCAL 812/2020

[2021] HKCFI 1237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 812 OF 2020 

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D E C I S I O N

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1.  On 22 September 2020 I struck out and dismissed the applicant’s leave application for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing her appeal regarding her non-refoulement claim upon finding that it was her second such application after her first one issued under HCAL 43/2016 had earlier been refused by another Court without appeal and hence the principle of res judicata applied, and that it was an abuse of process for her to try to re-litigate her case by bringing a second judicial review in respect of the same decision of the Board.

2.  The applicant now by a summons issued on 9 December 2020 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 6 October 2020, and hence she was more than 2 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 2 months must be considered as substantial, for which she explained in her supporting affirmation that she was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) and did not know how to go about it to appeal, and that by the time she was able to obtain legal assistance, she was already out of time with her intended appeal.

5.  While I note that the applicant was indeed being detained at CIC when she launched her second leave application for judicial review, the record shows that by the time the decision was handed down on 22 September 2020, she had already been released from CIC and the decision was subsequently sent to her residential address provided by her to the Immigration Department and without being returned through undelivered post. As such and in the absence of any further details or documentary evidence from the applicant to corroborate her bare assertions, and as she also failed to attend the hearing of her summons, I am not satisfied that her has provided any good or valid reason for her substantial delay with her intended appeal.         

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 that as noted she also failed to attend the hearing of her summons without any explanation. 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, 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.