Re Pham Thi Tinh Xuan

HCAL 2779/2018

[2022] HKCFI 3151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2779 OF 2018

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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 in Hong Kong 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 23 March 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 on 3 October 2022 applying for extension of time to appeal against the Court’s decision. In her affirmation in support of her application, the applicant reiterated her reasons for coming to Hong Kong. She has not given any explanation for her delay.

Discussion

5.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.

6.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. The deadline for her appeal is 6 April 2022. The applicant is late for about 6 months. Her application should be dismissed for lack of explanation for her delay. I shall, nevertheless, first consider the merits of the case.

7.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].”

8.The applicant claimed that, if refouled, she would be harmed or killed by her husband and a triad headed by Dao Minh Tuan (“Dao”) because of the unpaid debt owed by her husband.

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

10.The Board observed that, while the applicant intended to seek protection in Hong Kong, she did not enquire about how and instead took up an unlawful employment [24]-[26]. It further noticed that, in the written representations made before the Director, the applicant only claimed fear of harm from her husband but not from Dao [27]-[37]. The Board also questioned the applicant’s version that her husband was not at home whenever Dao and his men visited her house. This was implausible if her claim of Dao’s daily visit was true and her husband still resided in that house [39]-[40]. The Board further cast doubt on Dao’s change of behavior when he visited the applicant’s new residence asking for repayments but without physically hurting her [41]-[42]. As a result, the Board found that the applicant’s claim lacked credibility [48].

11.Alternatively, the Board considered the alleged risk of harm. It found that the injuries suffered by the applicant from Dao or her husband were not serious [50]-[52]; that, after reviewing the relevant country of origin information, the Board found that state protection would be available to her [56]-[58]; and that internal relocation to Ho Chi Minh City was an option [59]-[62]. In assessing the individual grounds, the Board also noted that the disputes were private without state involvement [68]. For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

12.The above references refer to the Board’s Decision.

13.The applicant has not been able to raise any valid reason to show that she has a realistic prospect of success in her intended appeal.

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

The applicant was unrepresented.