RE PUN BIYATRI

HCAL 680/2018

[2019] HKCFI 1301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 680 OF 2018

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REASONS FOR DECISION

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Introduction

1.  This is an application for leave to appeal out of time the decision of Deputy Judge J. Lam dated 20 February 2019 (“the Court’s Decision”) whereby the court refused to grant her leave to apply for judicial review of the Decision of the Torture Claims Appeal Board (“the Board’s Decision”), with the Director of Immigration (“the Director”) as the interested party.

2.  Full particulars of the factual background are contained in the Court’s Decision. I shall briefly set out the proceedings leading to this application below.

(1)  The applicant lodged her non-refoulement claim with the Director and her application was rejected.

(2)    She appealed to the Board. Having considered her evidence, the Board refused her appeal and confirmed the Director’s Decision.

(3)   She took out an application for leave to apply for judicial review of the Board’s Decision, with the Director as the interested party.

(4)    She had attended a hearing before Deputy Judge J. Lam. By Form Call-1, the court declined to give her leave to apply for judicial review.

(5)    On 7 March 2019, she filed a summons asking for leave to appeal against the Court’s Order out of time because the deadline for her appeal is 5 March 2019. She was one day late.

3.  She has filed an affirmation in support of her application. In her affirmation, she said that she did not receive the Court’s Order on time. It is difficult to understand what she means. However, since the delay is only one day, this Court will be willing to grant the extension if she can show that her appeal has reasonable prospect of success.

4.  The Court of Appeal in Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 4 December 2018 at §10 held:

“In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016).”

5.  In her affirmation, the applicant has stated no other ground in support of her application. She simply said that her friend advised her that she should have good grounds to appeal. But it is not necessary to state the good grounds at this stage. She appeared before me and maintained the same position.

6.  This is not acceptable. The applicant has to satisfy this Court that she has good grounds to appeal and she must state them for this Court consideration.

7.  I have reviewed the Court’s Decision. Deputy J. Lam had considered the Board’s Decision. The Adjudicator placed no weight in her evidence.[1] The learned Deputy Judge had also set out the reasons for refusing her appeal.

8.  In the circumstances, she has not been able to show that she has reasonable prospect of success for her intended appeal.

9.  I refuse to extend time to her to appeal against the Court’s Decision.