Re v. Thi Tuyen

HCAL 1698/2021

[2022] HKCFI 2094

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1698 OF 2021

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  6 July 2022

Date of Decision:  19 July 2022

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D E C I S I O N

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1.On 24 February 2022 I refused to extend time to the late application of the Applicant for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing her appeal regarding her non-refoulement claim at her own request to withdraw the same upon finding that there was no good reason for her extremely serious delay of more than 3 years and 9 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 April 2022 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 the High Court, Cap 4A ended on 10 March 2022, and hence she was 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 4 weeks must be considered as substantial or inordinate, for which she explained at the hearing of her summons that she was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) and received the decision late in the mail, and as she was unable to read English and had had to seek legal assistance with her application all of which contributed to the delay.

5.The court record shows that the decision was sent on the same day to the Applicant’s last reported address at CIC without being returned through undelivered post, and while I accept that it is inevitable that there would be some delays caused by restrictions on incoming and outgoing mails for inmates or detainees at CIC as well as in seeking assistance with legal process, but I am not satisfied that they could amount to a good or valid reason for such significant delay on the part of the Applicant with her intended appeal.

6.More importantly, the Applicant has 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, and at the hearing of her summons she could only repeat her claim as before that she still has problems with her creditor over her outstanding debts in her home country. 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