Dinh Thi Thanh Ha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1980/2024

[2025] HKCFI 3218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1980 OF 2024

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BETWEEN

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DECISION

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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 Judgment dated 6 February 2025 (“the Judgment”), the Court dismissed her application for the reason that there is no realistic prospect of success in her intended application.

4.The Judgment was sent to the applicant on 6 February 2025 at her last known address without being returned from the Post Office. She is deemed to receive the Judgment[1].

5.The time for filing the notice of appeal expired on 20 February 2025[2].

6.By summons filed on 16 May 2025, the applicant applied for appeal against the Court’s decision out of time. She is late for more than two and a half months.

7.In her affirmation support of his application, the applicant said that she did not receive the Judgment from the Court.

Discussion

8.Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[3].

9.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. 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 claimed that if refouled, she will be harmed or killed by her creditor because she was unable to repay her debt.

12.The Director rejected her claim because it was not substantiated. She appealed to the Board. Having considered the evidence, the Board held that she will not be subjected to any alleged harm if she returns to Vietnam.

13.There is no valid reason from the applicant to challenge the Board’s Decision or the Court’s decision.

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

The applicant was unrepresented.