RE HOANG BICH NGOC

HCAL 739/2021

[2022] HKCFI 1673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 739 OF 2021

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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 and she lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, 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 Form CALL-1 dated 17 September 2021 (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 Court’s decision was re-sent to her new address on 30 September 2021. She is deemed to have received it the next following day. The deadline for her to file her notice of appeal is 15 October 2021 (within 14 days after such order)[1].

4.  The applicant filed a summons on 18 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 receive the Court’s letter and she did not understand the contents of the Court’s decision since it is in English.

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 serious. 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 by her creditor because she was unable to repay her loan of 350 million of Vietnamese currency for her restaurant business, which failed.

10.  The Director found that the level of risk of her being harmed by the creditor if she returned to Vietnam was assessed to be low [10]; that reasonable state protection would be available to her [17]and that internal relocation was an option open to her [18]. The references refer to the Director’s Decision. She appealed to the Board.

11.  The Board found that she was not a truthful witness and it rejected her evidence on the facts.

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.