Re Nguyen Thi Dung

HCAL 1989/2018

[2022] HKCFI 2747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1989 OF 2018

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

Date of Decision:  20 September 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 by staying without permission 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”). Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected her appeal and affirmed the Director’s Decisions.

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 14 January 2022 (“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 dated 8 August 2022 applying for extension of time to appeal against the Court’s decision.

5.In her affirmation in support of her application, she reiterated the reasons why she had come to Hong Kong from Vietnam without raising any ground.

Discussion

6.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

7.The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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. I shall first consider the merits of the case.

8.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].”

9.The applicant claimed that, if refouled, she would be harmed or killed by her husband and his gangster friends, the creditors of her husband.

10.The Director refused her application because her claim was unsubstantiated. She appealed to the Board.

11.However, she was absent on the day of hearing. The Board, having complied with the procedural requirements, proceeded to consider her case on paper. The Board found that the applicant’s claim was based largely on unsupported evidence and speculation. Overall, since the applicant’s claim lacked credibility and the state protection and internal relocation alternatives were available, the Board rejected the applicant’s claim on all applicable grounds [54]-[74]. The references refer to the Board’s Decision.

12.The applicant has not been able to say in what respect had the Board erred in its Decision or this Court had committed any error in the assessment of the case. There is, therefore, no realistic prospect of success in her intended appeal.

13.In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.

The applicant was unrepresented.