Re v. Thi Huong

HCAL 1475/2021

[2022] HKCFI 351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1475 OF 2021

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

Date of Decision:  15 February 2022

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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 29 December 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 18 January 2022 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 did not know how to prepare her appeal until she got a friend to help her and further said: “…The Decision made by the High Court has been been reached unwarily without allowing us an opportunity to clarify my case and situation in my country. …”

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.The applicant is about 6 days’ late. However, I have to consider whether her intended appeal has any real prospect of success as directed by the Court of Appeal in the case below.

9.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].”

10.The applicant claimed that, if refouled, she would be harmed or killed by her creditor because she was unable to repay the loan and that she would be sold to a brothel. 

11.The Director found that the level of risk of her being harmed or killed by her creditor or being sold by the pimp was assessed to be low [10]-[16]; that state protection would be available to her [17]-[20] and that internal relocation was an option open to her [21]-[22]. She appealed to the Board.

12.The Board found that the applicant’s intention to seek protection in Hong Kong was suspicious [48]-[49]. Further, the Board considered the relevant country of origin information, in particular, the actions taken by the government to combat illegal moneylending activities and therefore concluded that reasonable state protection was available to the applicant [50]-[81].  Thus, the applicant’s claim under Persecution risk failed [82].  Further, there was no evidence that the applicant was targeted by the government and that there was no state involvement [95]-[101].  For these reasons, the Board also rejected the applicant’s claim on the remaining grounds.      

13.The application was considered on paper as the applicant did not request an oral hearing. In view of the Board’s reasons for its decision, it is difficult to see how her situation in her country would affect the Board’s Decision.

14.The applicant has not raised any viable ground to show that she has any realistic prospect of success in her intended appeal. Nor has she set out any reasons to show that the Court’s decision was in error. There is no realistic prospect in her intended appeal.

15.In the circumstances, it is futile to extend time for the applicant to file her notice of appeal.  I refuse to extend time for her appeal. Accordingly, I dismiss her application.

The applicant was unrepresented