Re Duong Thi Be

HCAL 1101/2018

[2021] HKCFI 2095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1101 OF 2018

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D E C I S I O N

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1.On 27 April 2021 I refused to extend time to the applicant’s late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing her appeal regarding her non-refoulement claim upon finding that there was no good reason for her serious delay, 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 application.

2.The applicant now by a summons issued on 21 May 2021 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 11 May 2021, and hence she was 10 days 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 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 10 days may not be regarded as substantial, for which she stated in her supporting affirmation as follows:

“2. I was only made aware of the Order in the second week of May 2021. My neighbours’ children took the post mistakenly from my letterbox, which was already broken and took it to their flat. Their parents only saw the letter from the court last week and handed me the Order.

3. I believe that the merits of this ground of appeal constitute sufficient reason justification for the court to exercise its discretion in allowing this appeal out of time.”

5.At the hearing of her summons the applicant repeated the same explanation but did not provide any further evidence such as a statement from her neighbor in support of her bare assertions, and as 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, I am not satisfied that the applicant has shown any good or valid reason for her albeit insubstantial delay,  and I propose to focus on the merits or prospect of her intended appeal.       

6.The applicant however did not 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 be reasonably argued that the decision was unfair or unreasonable either in her summons or affirmation, and at the hearing of her summons she just stated that her proposed grounds of appeal have already been set out in her affirmation which however as noted above did not in fact disclose any proper grounds of appeal. 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