NEPOMUCENO MARIANNE KHAMEA LLANA v. TORTURE CLAIMS APPEAL BOARD

HCAL 587/2019

[2023] HKCFI 293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 587 OF 2019

_____________

BETWEEN

_____________

_____________

D E C I S I O N

_____________

1.  On 31 August 2022 I refused to grant leave to the applicant 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 none of her proposed grounds were reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in her 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 24 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 14 September 2022, and hence she was more than 5 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicant’s case, a delay of more than 5 weeks must be considered as substantial and inordinate, for which she first explained in her affidavit that she only received the decision late in mid-October 2022, and at the hearing that she clarified that she changed her address sometimes in 2021 without informing the court, and when she was later informed by her friend who was residing in her former address of the receipt of the court’s decision sent to her former address, but by the time she was able to retrieve the decision from her friend, she was already out of time to 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 if the applicant did not inform the court of her change of address as soon as practicable which was her duty to do so, and as a result she received the decision late, she had only herself to blame for the delay, and as such I am not satisfied that the applicant has any justification 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 affidavit, and at the hearing of her summons she could only state that she just does not want to go back to her home country as her life would still be in danger there. 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 of the applicant, and accordingly I refuse her application for extension of time to appeal and dismiss her summons.