Nguyen Thi Hoa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2142/2023

[2024] HKCFI 1619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 2142 OF 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 12 March 2024 (“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 deadline for her to file her notice of appeal is 26 March 2024.

5.In her affirmation filed on 23 April 2024, the applicant said she did not know how to apply for appeal. She further said that there is a good ground of appeal, but it is not necessary to be considered at this stage.

6.She is almost a month late for her appeal application.

Discussion

7.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^[1].

8.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.

9.I shall consider the merits of her case.

10.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].”

11.The applicant’s claim was based upon her allegation that if refouled, she would be harmed or even killed by her creditor, Doan, because she failed to repay the loan.

12.Having considered the evidence, the Board found that the applicant would not face any harm in light of the duration and intensity of attack by Doan.

13.The applicant said she considers that it is not necessary to consider the merit of her case. This is a misconception. On the contrary, the Court has to consider the merits of her case at this stage.

14.The applicant is not able to raise any valid reason to challenge the Board’s Decision. Thus, there is not any realistic prospect of success in her intended appeal.

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

The applicant was unrepresented.