RE MIFTAHUL KHUROTA AYUN

HCAL 109/2022

[2022] HKCFI 2568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 109 OF 2022

______________

______________

______________

DECISION

______________

Introduction

1.  This is the Applicant’s application by summons dated 17 June 2022 for extension of time to appeal the order of this Court dated 25 May 2022 (the “Order”) refusing her application for leave to apply for judicial review.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  By 17 June 2022, the time to appeal has expired.  The application for leave to appeal is nine days out of time.  The breach is not serious.

3.  In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

Length of the delay, reasons for delay, prospect of success of the intended appeal

4.  In her affirmation filed in support of her application, the Applicant explained that she did not know English and court procedure and was not aware of the time limit. The Court did not consider that an adequate explanation for the delay.  To assist her in presenting a proper case for extension of time, the Court gave her directions for filing a statement giving explanation for the delay and the grounds of her intended appeal.

5.  The Applicant responded by letter dated 20 July 2022.  She repeated that she had been asking her friends to help and by the time she was informed that she could appeal, time had expired.  That is not a reasonable explanation for the delay.  Nevertheless, the delay was not very serious, it was not fatal.  The Court was prepared to overlook the delay and explore the prospect of success of the intended appeal.  But, despite clear directions were given, the Applicant failed to inform the court of the grounds of her intended appeal.  Having re-examined the Form Call-1 with anxious scrutiny, this Court is driven to the conclusion that she has no arguable grounds of appeal.  Her intended appeal has no prospect of success.

Prejudice to the respondent

6.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time.  But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. It is an abuse of legal process and would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

7.  In summary, there is no valid explanation for the delay of a not insubstantial length of time of nine days.  That is not necessarily fatal to an application for extension of time.  But the absence of a good ground of appeal with prospect of success is.  It is an abuse of process to challenge a decision without proper and good ground of appeal and which is bound to fail.  To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration.  For all these reasons, the application for extension of time to appeal is refused.