RE CUCU JUWATI

HCAL 335/2022

[2023] HKCFI 170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 335 OF 2022

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D E C I S I O N

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1.  On 26 July 2022 I refused to extend time to the seriously late application of the applicant for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her appeal/petition regarding her non-refoulement claim upon finding that there was no good reason for her extremely serious delay of almost 3 ½ years with her application, that none of her proposed grounds were reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“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 14 October 2022 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 the High Court, Cap 4A expired on 9 August 2022, and hence she was more than 9 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 more than 9 weeks must be considered as very substantial and inordinate, for which she explained at the hearing of her summons that she only received the decision sometime in mid-October 2022 when by then she was already out of time with her intended appeal.

5.  The court record shows that the decision was first sent on the same day of 26 July 2022 to the applicant’s then reported address but was subsequently returned through undelivered post, and upon enquiry made with the Immigration Department for her latest address to which the decision was re-sent on 5 August 2022 without being returned, and upon confirming with the applicant that it is the same address as stated in her present application and which would have put the deadline for her to file her appeal to 19 August 2022, in which case she would still be more than 7 weeks late with her intended appeal. As such and in the absence of any further evidence such as the envelop which contained the decision to show the actual postmark to corroborate her bare assertion, I am not satisfied that the applicant has provided a good or valid reason for her serious delay.

6.  More importantly, the applicant also 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 could only state that she just does not want to return to her home country. 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, 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.