Re Nguyen Thi Thu

HCAL 753/2018 &
HCAL 943/2020
(Consolidated)

[2021] HKCFI 103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 753 OF 2018

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 943 OF 2020

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(Consolidated pursuant to the Order of Deputy High Court Judge Bruno Chan dated 15 June 2020)

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 3 December 2020

Date of Decision: 28 January 2021

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D E C I S I O N

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1.On 15 June 2020 I refused to extend time to the Applicant’s late applications for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing her appeal regarding her non-refoulement claim upon finding no good reason for her delay with her applications, that 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 of Immigration or the Board or in their decisions, and that there was no reasonable prospect of success in her intended applications.

2.The Applicant now by a summons issued on 23 September 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 expired on 29 June 2020, and hence she was late by almost 3 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 almost 3 months must be considered as substantial or significant, for which she explained at the hearing of her summons that she never received the decision in the mail, and was only informed of it later by her immigration officer when she reported on her recognizance, but by then she was already out of time with her intended appeal.

5.The court record however shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and in the absence of any further details or documentary evidence in support of her bare assertion, I am not satisfied that she has provided any good or valid reason for her delay.

6.More importantly, nor did she put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in her summons, and in her affirmation as well as at the hearing she merely repeated her claim that she would be killed by her creditor if she were to return to her home country. 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 her 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