Read the full judgment text of CAMP 436/2021 on BabelCite. This Court of Appeal judgment was delivered on 11 February 2022 before Au King Cheung JA, Chow Ka Ming JA.
Civil procedure – application for extension of time to appeal – leave to appeal – non-refoulement – judicial review – Torture Claims Appeal Board – credible fear – creditor debt – Vietnam – illegal entrant – no reasonable prospect of success – self-represented applicant – 2-day delay – four-factor test – merits decisive – Application dismissed. The applicant, a Vietnamese national, entered Hong Kong illegally on 31 May 2016 and claimed non-refoulement protection on the basis that she feared harm from creditors in Vietnam due to unpaid debts for a failed poultry farming business. The Director of Immigration rejected her claim on 22 March 2017 under the Immigration Ordinance (Cap 115) Part VIIC (torture risk), the Hong Kong Bill of Rights Ordinance (Cap 383) section 8 (risk to life, cruel treatment), and the Convention relating to the Status of Refugees Article 33 (persecution risk). The Torture Claims Appeal Board dismissed her appeal on 23 November 2018, finding her evidence not credible. She sought leave to apply for judicial review of the Board's decision, but Deputy Judge Lung refused leave on 13 July 2021 ([2021] HKCFI 1999). The applicant failed to appeal within the 14-day period under Order 53 rule 3(4) of the Rules of the High Court (Cap 4A). She applied for an extension of time on 29 July 2021, which was refused on 30 August 2021 ([2021] HKCFI 2349). On 6 October 2021, she filed a summons to set aside that order, which the Court of Appeal treated as a fresh application for extension of time to appeal the refusal of leave. The Court of Appeal considered the established four factors: length of delay (2 days), reasons for delay, merits of the proposed appeal, and prejudice to the respondent. The court emphasised that the decisive factor was the merits of the appeal. The applicant's submissions merely restated her personal background and did not identify any error in the decision of Deputy Judge Lung. She failed to show that the proposed appeal had any reasonable prospect of success. Accordingly, the court dismissed the application and set aside the summons of 6 October 2021. – Application for extension of time dismissed – Summons set aside.
Legal issues: Extension of time to appeal and leave to appeal out of time
Outcome: Application for extension of time to appeal dismissed; summons of 6 October 2021 set aside.
Cited by 1 case · Cites 8 cases