Re Hoang Kim Hoi

HCAL 1535/2018

[2021] HKCFI 3454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1535 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 10 November 2021

Date of Decision: 23 November 2021

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D E C I S I O N

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1.On 13 May 2021 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing her appeal/petition regarding her non-refoulement claim upon finding 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 of Immigration (“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 29 June 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 27 May 2021, and hence she was more than 4 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 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 more than 4 weeks must be considered as substantial, for which she explained in her supporting affirmation that she was unrepresented and without financial means to seek proper legal advice regarding her intended appeal, and hence by the time she was ready to proceed with her appeal, she was already out of time.

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 as ignorance of the rules can never be accepted as an excuse for their non-compliances, and that she also failed to attend the hearing of her summons without any explanation. As such I am not satisfied that the applicant has any good reason for her delay.

6.More importantly, the applicant has also 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 in her summons, while in her affirmation she claimed to have a good ground of appeal, she did not specify what it is, and as noted above she also failed to attend the hearing of her summons so as to explain what good ground that she may have for her intended appeal. In the circumstances 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. I accordingly refuse her application for extension of time to appeal, and dismiss her summons.

The applicant was not represented and did not appear