RE HOANG THI THANH THU

HCAL 1091/2018

[2021] HKCFI 2298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1091 OF 2018

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D E C I S I O N

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1.  On 27 April 2021 I refused to extend time to the applicant’s late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing her appeal regarding her non-refoulement claim upon finding that there was no good reason for her serious delay, 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 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 25 May 2021 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 High Court, Cap 4A ended on 11 May 2021, and hence she was 14 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 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 Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicant’s case, a delay of 14 days cannot be considered as insignificant, for which she explained at the hearing of her summons that as she is unrepresented and cannot read the decision which is in English, and had had to seek help from others but 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 last reported address without being returned through undelivered post, and while it is accepted that she is unrepresented and therefore required legal assistance, that cannot be accepted as a good reason for her albeit insubstantial delay, and I propose to focus on the prospect of success in her intended appeal.

6.  However, the applicant did not put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may be reasonably arguable that the decision was unfair or unreasonable either in her summons or her affirmation, and at the hearing she just stated that she is still unable to repay her creditor and hence she cannot return to her home country. 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 either.

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.