Re Nguyen Thi Hoa

HCAL 1246/2018

[2021] HKCFI 2980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1246 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 29 September 2021

Date of Decision: 15 October 2021

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D E C I S I O N

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1.On 25 March 2021 Deputy High Court Judge C P Pang 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/petition 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 was reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“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 31 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 8 April 2021, and hence she was more than 7 weeks 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 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 The 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 more than 7 weeks must be considered as substantial, for which she explained at the hearing of her summons that the decision arrived late in the mail, and as she was unrepresented that by the time she was able to find help from her friends with her application, she was already out of time with her intended appeal.

5.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, and in the absence of any further details or documentary evidence such as the envelope which contained the decision to show its postmark so as to corroborate her bare assertions, I am not satisfied that the applicant has provided a good reason for her serious delay.

6.More importantly, the applicant has failed to 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 reasonably be argued that the decision was unfair or unreasonable either in her summons or her affirmation, and at the hearing of her summons she merely repeated her claim as before that she still has problem in her home country that she cannot yet return.  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, 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