BUI THI HOA v. DIRECTOR OF IMMIGRATION

HCAL 482/2023

[2023] HKCFI 2200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 482 OF 2023

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BETWEEN

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D E C I S I O N

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1.  On 14 June 2023 I refused to extend time to the late application of the Applicant for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her appeal/petition regarding her non-refoulement claim upon finding that there was no good reason for her serious delay of more than 5 months with her application, that none of her proposed grounds were reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in her process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no merits in her intended application.

2.  The Applicant now by a summons issued on 19 July 2023 seeks extension of time to appeal against that decision, as the 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of the High Court, Cap 4A expired on 28 June 2023, and hence she was some 3 weeks 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 success of the intended appeal; and (iv) the prejudice to the respondent if an 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of 3 weeks cannot be regarded as insubstantial, for which she explained at the hearing of her summons that she was earlier being detained by the Immigration Department until early May 2023 when she was released and moved to her present stated address, but she received the decision in the mail late and had had to look for lawyers to help her with her application when by then she was already out of time with her intended appeal.

5.  The court record shows that the decision was sent on the same day to the Applicant’s then detention at the Castle Peak Bay Immigration Centre (“CIC”) but was returned undelivered as the Applicant had by then already been released, and it was upon enquiry made with the Immigration Department for her latest address that the decision was resent to the Applicant on 30 June 2023 at her present address without being returned through undelivered post, in which case the Applicant would still be some 5 days late with her intended appeal, for which she had only herself to blame as she never informed the Court of her address upon her release from CIC in early May 2023. As such I am not satisfied that the Applicant has provided a good or valid reason for her delay, but given its relative insignificance, I propose to focus on the prospect of her intended appeal.

6.  However, despite having legal assistance 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 her affirmation in which she just repeated her claim as before but without putting forth any proper grounds for her intended appeal, nor was she able to do so at the hearing of her summons. 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. I accordingly refuse her application for extension of time to appeal, and dismiss her summons.