Re Nguyen Thi Ut

HCAL 775/2021

[2021] HKCFI 3279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 775 OF 2021

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

Date of Decision: 15 November 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”) and the Board dismissed her appeal (the “Board’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 19 July 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 on 25 October 2021 applying for extension of time to appeal against the Court’s decision.

5.In her affirmation in support of her application, she said that she had to obtain her friend’s assistance to prepare her appeal. She considered that the Court’s decision is unfair without allowing her chance to clarifying her situation in her own country. She asked for an oral hearing.

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 applicant appealed to the Board against the Director’s Decision. She did not appear before the adjudicator of the Board on 10 October 2018. The Board, having given her the notice that her appeal would be considered on paper unless she explained her absence within the time allowed by the law. She did not respond to the notice. The Board therefore dealt with her appeal on paper.

10.The Board was unable to clarify her evidence in relation to her poultry farm business; how the loan was drawn down from the moneylender and how the money was spent; why she did not report the matter to police, but only to the People’s Committee; her illegal activities in Hong Kong; inconsistent evidence in relation to her elder sister’s participation in the business; the discrepancy about the nature of business of the poultry farm. See paragraphs 95-115. Without the clarifications above, the Board found that the applicant was not a truthful witness [116]; that her evidence was not credible [118]; that she had fabricated her case about the loan and her poultry farm [119-120]; that state protection should also be available to her [125] and that out of caution that if the finding of the facts was wrong, internal relocation was an option open to her [155].

11.It is obvious that the Board rejected her factual evidence in support of her claim. She has no factual basis for her claim.

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

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

The applicant was unrepresented