RE LE THI ANH

HCAL 2708/2018

[2022] HKCFI 1615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2708 OF 2018

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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 way of overstaying and she lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decisions, 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 Decisions.

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 Form CALL-1 dated 8 March 2022 (the “Court’s decision”), the Court dismissed her application for the reason that there is no realistic prospect of success in her intended judicial review. The deadline for her to file her notice of appeal is 23 March 2022 (within 14 days after such order)[1]. Since the Court Registry was closed between 7 March to 11 April 2022, such period should not count. The deadline becomes 26 April 2022 (14 days from 12 April 2022).

4.  The applicant filed a summons on 10 May 2022 for appeal against the Court’s decision out of time.

5.  In her affirmation in support of her application, she said she did not under understand and she did not have legal advice. Also, the Court Registry was closed in the middle of March.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

7.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (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. The delay is about 2 weeks. Nevertheless, I shall consider the merits of the 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 claimed that if refouled, she would be harmed or killed by her creditor Nam for her default in repaying the loans.

10.  The Director found that the level of risk of the applicant being harmed or killed upon refoulement by the creditor was assessed to be low because (i) it was only a private and localized monetary dispute and there was no serious injuries (either mentally or physically) caused by the creditor and the gangsters [11]; (ii) state protection was available to the applicant [12]-[16]; and (iii) internal relocation was an option open to the applicant [17]-[22]. The references refer to the Director’s First Decision. She appealed to the Board.

11.  The Board found that the applicant had no prior commercial experience before establishing her business. It cast doubt on the fact that she would invest a majority sum of her allowance in something that she barely knew [42]. The Board also reviewed the costs and profits of her business and pointed to her that the profit of her business was grossly inadequate for repaying the loans. Upon the Board’s inquiry, the applicant provided inconsistent account [43]-[47]. Given the unsatisfactory explanations, the Board found her not a credible witness [47]. In assessing the individual grounds, the Board found that it was only a private dispute with no state involvement [49]-[56]. In any event, internal relocation to Ho Chi Ming city was an option open to the applicant [57]-[60]. For these reasons, the Board dismissed her appeal. The references refer to the Board’s Decision.

12.  The applicant is unable to set out any valid ground to challenge the Board’s Decision. Nor can she point out any error on the part of this Court in the assessment of her application.

13.  There is no realistic prospect of success in her intended appeal. I therefore refuse to extend time for her to appeal and dismiss her application.