Re Nguyen Thi Lien

HCAL 2706/2018

[2021] HKCFI 2506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  2706 OF 2018

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Before:  Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:  3 September 2021

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D E C I S I O N

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The application

1.The applicant is an illegal immigrant and she lodged a non-refoulement claim with the Director of Immigration (the “Director”).  The Director rejected her application and she appealed to the Torture Claims Appeal Board (the “Board”).  Having considered her evidence, the Board, by its Decision (the “Board’s Decision”), rejected her appeal and affirmed the Director’s Decision.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.By Order dated 2 June 2021 (the “Court’s decision”), the Court dismissed her application for the reason that there was no realistic prospect of success in her intended application.

4.The applicant filed a summons dated 13 August 2021 applying for extension of time to appeal against the Court’s decision.

5.In her affirmation in support of her application, she repeated her story in support of her claim without explaining any reason for her delay.

Discussion

6.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

7.In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

8.In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

9.The Board had considered the applicant’s evidence, rejected her appeal and affirmed the Director’s Decision.  Whilst the Board did not have doubt in her story, it nevertheless held that the loan was a personal business between the applicant and the loan shark without state involvement [20] and the attacks did not fall within the context of section 37U of the Immigration Ordinance Cap. 115; that there was no evidence to show that the Vietnamese government was unable to render protection to her if she returned to Vietnam [32]; that the applicant’s case had nothing to do with BOR 2 risk [35]; that her case did not pass the lowest threshold of BOR 3 risk [39]; that her case did not fall within the ambit of Persecution risk [44] and that internal relocation was an option open to her [48].

10.Her reason in support of her application does not assist her.

11.The applicant has not raised any viable ground to show that she has any reasonable prospect of success in her intended appeal.

12.In the circumstances, I refuse to extend time for her appeal.  Accordingly, I dismiss her application.

The applicant was unrepresented.