Bui Khanh Ly Alias Bui Thi Khanh Ly v. Torture Claims Appeal Board

HCAL 292/2022

[2023] HKCFI 1190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 292 OF 2022

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D E C I S I O N

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1.On 6 June 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 rejecting/dismissing her appeal/petition regarding her non-refoulement claim upon finding that there was no good reason for her very serious delay of more than 2 ½ year 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 her 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 12 December 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 expired on 20 June 2022, and hence she was more than 5 months 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the Applicant’s case, a delay of more than 5 months must be considered as very substantial and inordinate, for which she explained at the hearing of her summons that being an unrepresented litigant she did not know how to proceed with her intended appeal, and had had to seek help from her friends, and by the time she was able to get legal assistance, she was already out of time with her intended appeal.

5.The court record shows that the decision was re-sent on 17 June 2022 to her new residential address after her subsequent release from the Castle Peak Bay Immigration Centre (“CIC”) where she was hitherto detained and without being returned through undelivered post, which would have put the deadline for her to file her notice of appeal to early July 2022 and hence she would still be some 5 months late, and while it is accepted that she might have required legal assistance with her intended appeal, I am not satisfied that the Applicant has provided a good or valid reason for her such serious delay.

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, and at the hearing of her summons she could only repeat her claim as before to still have problem in her home country that she cannot return.　 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.