Re Luu Thi Kim Thuy and Another

HCAL 2705/2018

[2021] HKCFI 1072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2705 OF 2018 

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 14 April 2021

Date of Decision: 29 April 2021

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D E C I S I O N

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1.On 2 September 2020 I refused to grant leave to the 1^st and 2^nd applicants, respectively a mother and her almost 17 year-old son from Vietnam, to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing their appeal regarding their non-refoulement claim upon finding none of the grounds put forward by them reasonably arguable for their 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 their intended application.

2.The 1^st applicant, i.e. the mother, now by a summons issued on 2 November 2020 seeks extension of time for herself only 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 16 September 2020, and hence she was late by more than 6 weeks 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 1^st applicant’s case, a delay of more than 6 weeks must be considered as substantial, for which she did not provide any explanation in her supporting affirmation, nor did she attend the hearing of her summons without any reason, and as the court record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I do not find any good or valid reason for her substantial delay.    

5.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 or her affirmation in which she merely repeated her claim of fear of being harmed or killed by her creditor over her outstanding debt if refouled to Vietnam, and as noted above she also failed to attend the hearing of her summons without any explanation. 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.      

6.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 1^st applicant was not represented and did not appear