Re v. Thi Hue

HCAL 1361/2018

[2021] HKCFI 3303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1361 OF 2018

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Before: Deputy High Court Judge P. Li in Chambers

Date of Decision: 11 November 2021

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D E C I S I O N

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1.The applicant is from Vietnam[1]. She was last arrested by the police on 7/9/2015. She was sentenced to imprisonment for 15 months for using a false instrument and unlawful employment.[2] It transpired that she had already lodged the non-refoulement claim in this case on 19/5/2014 and 22/5/2014.

2.The basis of her claim was that she might be harmed or killed by the creditor (“Nguyen”) and his men. She had borrowed VND 600 million from Nguyen in 2007 to expand her business. She was unable to repay the loan. Nguyen threatened to kill her. She left her home village and lived at Hai Phong and Hon Gai for 3 years. She met Nguyen’s men and was assaulted on one occasion. She was in such fear that she decided to leave Vietnam and sneaked into Hong Kong on 10/12/2012.

3.Her non-refoulement claim was rejected on 16/8/2017 by the Director. The appeal was dismissed by the TCAB on 16/1/2018.

4.The adjudicator concluded that the applicant failed to prove that there were substantial grounds indicating real risk of harm. The adjudicator found that it was a private loan dispute. The creditors did not inflict any serious harm on her. There was no ill-treatment which amounted to torture. The creditor had no intention to kill her. The creditor only put pressure on her. There were reasonable options for internal relocation. The adjudicator concluded that her claim failed on all grounds.[3]

5.On 12/7/2018, the applicant filed a leave application for judicial review. She was out of time for almost 3 months. In her affirmation, she asserted that the adjudicator ignored the realities in Vietnam. She complained that the adjudicator was unfair.

6.Deputy Judge CP Pang found that the delay was substantial. There was no application for extension of time. The applicant did not provide any explanation. The Judge pointed out that there was no error of law and procedures. The decisions of the TCAB was rational. There was no prospect of success in the intended judicial review. The Judge refused to extend time as there was no good reason. The Judge also refused leave for the intended judicial review on 4/11/2020.

7.The applicant filed a summons on 7/1/2021 for extension of time to appeal against the decision. She was out of time for about 7 weeks.

8.In her affirmation, the applicant basically repeated the factual basis of her claim. She was assaulted by the creditor who damaged her properties. She was in such fear of her life that she fled to Hong Kong.

9.In considering whether to extend time for appeal, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the merits of the intended judicial review; (4) prejudice to the respondent.[4]

10.There is a substantial delay of about 7 weeks. She submitted no explanation for the delay.

11.As set out in paragraph 4 above, the adjudicator found that she could not prove that there was substantial ground of real risk of harm. I agree with the decision of the TCAB. I also agree with the decision of Deputy Judge CP Pang. In my judgment, there is no merit in the intended judicial review.

12.Having considered all relevant factors, I refuse the application for extension of time to appeal.

The applicant was unrepresented.