Nguyen Thi Hong v. Torture Claims Appeal Board

HCAL 1582/2019

[2024] HKCFI 2043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1582 OF 2019

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BETWEEN

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D E C I S I O N

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1.On 4 June 2024 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim upon finding that none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the 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 24 June 2024 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file her appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap. 4A expired on 18 June 2024, and hence she was 6 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 the intended appeal; and (iv) the prejudice to the respondent if 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 Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the Applicant’s case, a delay of 6 may not be considered as significant or substantial, for which she explained in her affirmation and at the hearing of her summons that she cannot read or write English and needed to seek legal assistance with her application, but by the time she was able to do so, she was already out of time with her intended appeal.

5.The court record shows that the decision was sent on the same day of 4 June 2024 to the Applicant’s last reported address without being returned through undelivered post, while accepting that she needed legal assistance and given the relative insignificance of her delay, I propose to focus on the prospect of success of her intended appeal.

6.However, the Applicant 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 in her affirmation, nor was she able to do so at the hearing of her summons other than asserting that she has married an aging Hong Kong resident and with a small child that both of whom require her to take care of in Hong Kong, of which I am sympathetic but that per se does not in my view amount to any valid or proper ground of appeal. 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. Accordingly, I refuse her application for extension of time to appeal, and dismiss her summons.

The Applicant appeared in person