Case Document

100%Judiciary

HCAL 1417/2022

[2023] HKCFI 2834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1417 OF 2022

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BETWEEN

	Dang Thi Mai Thi	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

_____________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

15 November 2023

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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 Decision.

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 11 April 2023 (“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.In her affirmation filed on 19 September 2023, the applicant said that it is unnecessary for the court to consider her ground at this stage of applying for leave for judicial review.

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 on paper 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.

7.The deadline for her appeal is 26 April 2023. The applicant is late for about 5 months. I shall consider the merits of her 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’s claim was based upon her allegation that if refouled, she would be harmed or killed by the loan-shark, Nguyen Van Cuong. The Director rejected her claim for not being substantiated. She appealed to the Board.

10.Having considered the evidence, the Board accepted her evidence and further considered that she might be subjected to illegal human trafficking. However, the Board further found that internal relocation is a viable option for her and thus dismissed her appeal.

11.The applicant has misconceived that the Court will not consider her grounds of appeal at this stage. The Court has to take such grounds into consideration in order to assess whether there is any merit in her intended appeal.

12.The applicant has not been able to raise any valid reasons to challenge the Board’s Decision. There is not any 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.