Re v. Thi Giang

HCAL 940/2021

[2022] HKCFI 1340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 940 OF 2021

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D E C I S I O N

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1.On 24 August 2021 I refused to extend time to the Applicant’s late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her appeal regarding her non-refoulement claim upon finding that there was no good reason for her extremely serious delay of more than 45 months with her application, that none of her proposed grounds were reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“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 7 October 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 7 September 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 or inordinate, for which she explained at the hearing of her summons that she was not aware of the 14-day rule and does not read or understand English, and by the time she was able to find legal assistance to help her with her documents, she was already out of time with her appeal.

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, whereas ignorance of the rules can never be accepted as a valid excuse or reason for their non-compliance, and while I accept that the Applicant being unrepresented and does not read English would certainly require assistance with her application, I am not satisfied that it can justify such serious delay on her part with her intended appeal.

6.More importantly, the Applicant 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 either in her summons or her affirmation in which she just stated that the decision was reached unfairly without allowing her an opportunity to clarify her case and situation in her country, when the fact is that she never requested any oral hearing for her leave application in the first place, while at the hearing when she was invited to put forth her proposed grounds of appeal, she just repeated her claim as before that she cannot return to her home country for fear of being killed by her creditor over her outstanding debts. As such 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 appeared in person