Re v. Thi Suu

HCAL 1193/2018

[2020] HKCFI 1957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1193 OF 2018

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D E C I S I O N

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1.On 8 January 2020 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing her non-refoulement claim upon finding none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the 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 1 June 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 22 January 2020, and hence she would be late by more than 4 months 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 4 months must be considered as substantial or excessive, for which she explained in her supporting affirmation that the registry was closed at that time due to the Covid-19 pandemic and that she was having difficulties finding someone to help her in preparing her application.

5.It is true that the General Adjourned Period (“GAP”) announced by the Judiciary due to the Covid-19 pandemic and resulted in the general closure of the court and tribunal registries from 29 January 2020 to 3 May 2020 would have hindered or prevented the Applicant from filing her appeal during that period, and that she would have been late by only about 1 week when the GAP commenced. In the circumstances I would be prepared to accept that the procedural breach in her case may not be as serious as it appears.      

6.However, and more importantly, the Applicant did not in her summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and at the hearing of her summons when she was invited to do so, she merely claimed as the economic situation in her home country of Vietnam is not good that she be allowed to remain in Hong Kong.  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 his 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.

The applicant appeared in person