Nguyen Thuy Van v. Torture Claims Appeal Board

HCAL 1457/2022

[2023] HKCFI 2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1457 OF 2022

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D E C I S I O N

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1.On 14 June 2023 I refused to grant leave to the Applicant 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 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 30 June 2023 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 28 June 2023, and hence she was 2 days 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 2 days cannot on any view be considered as significant, for which she explained at the hearing of her summons that she never received the decision in the mail, and that it was only on 6 July 2023 that she obtained a copy of the decision from the Court after being informed by a friend who noticed it on the Judiciary website.

5.The court record shows that the decision was sent on the same day of 14 June 2023 to the Applicant’s then detention at the Castle Peak Bay Immigration Centre (“CIC”) but was returned through undelivered post, and upon enquiry with the Immigration Department, the decision was re-sent on 30 June 2023 to her stated residential address without being returned through undelivered post, but if she never received it in the mail as alleged and that she only got it later on 6 July 2023, then she could not have issued her present application for leave to appeal out of time some 7 days earlier on 30 June 2023. In any event, it is clear that she failed to report to the Court of her new address upon her release from CIC, a condition which she was required to comply with as soon as practicable of such change under the terms of her recognizance. Nevertheless, given the insignificance of her delay, I propose to focus on the prospect of her intended appeal.

6.However, 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 or her affirmation which appeared to have been made with legal assistance but which failed to disclose any ground of appeal notwithstanding her claim to have a good ground of appeal in her affirmation, nor was she able to do so at the hearing of her summons other than repeating her claim as before that she cannot return to her home in Vietnam. 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.