Re Nguyen Thi Lien

HCAL 824/2018

[2021] HKCFI 2299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 824 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 3 August 2021

Date of Decision: 17 August 2021

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D E C I S I O N

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1.On 28 July 2020 Deputy High Court Judge C P Pang refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim upon finding 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 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 14 August 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 11 August 2020, and hence she was 3 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 3 days may not be considered as significant, for which she explained at the hearing of her summons that she received the decision late when by then she was already out of time with the filing of her intended appeal.   

5.The court record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, and in the absence of any further evidence such as the envelope showing the actual postmark to corroborate her bare assertions, I am not persuaded that the applicant indeed received the decision so late in the mail as alleged that by then she was already out of time, but given the relatively insignificance of the delay, I propose to focus on the prospect of success in her intended appeal.

6.However, the applicant 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 arguable that the decision was unfair or unreasonable either in her summons or her affirmation, and at the hearing she just repeated her claim that as she still owes her creditor debts and hence she cannot return to her home country to risk being harmed. 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 either.

7.In the premises, and for the reasons given, 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