RE NGUYEN THI HA

HCAL 1127/2021

[2021] HKCFI 3486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1127 OF 2021

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D E C I S I O N

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1.  On 16 September 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) in refusing to allow her request to make a subsequent claim for non-refoulement protection upon finding 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, and that there was no reasonable prospect of success in her intended application.

2.  The Applicant on 28 October 2021 filed an affirmation without any summons to seek 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 30 September 2021, and hence she was 4 weeks late with her intended appeal.

3.  Upon receiving the Applicant’s said affirmation and realizing her intention, the Registry wrote to her on 2 November 2021 informing her that she should make a proper application by way of a summons for extension of time to appeal, but to which the Applicant has not responded. Given that she is legally unrepresented, and in order to save time and costs, I propose to treat her affirmation as her application for extension of time for her intended appeal, and to deal with it on paper.      

4.  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.

5.  In the Applicant’s case, a delay of 4 weeks must be considered as substantial, for which she did not provide any explanation in her affirmation, and as the court record shows that the decision was sent on the same day to her last reported address, I do not see any good reason for the Applicant’s delay.

6.  More importantly, nor has the Applicant 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 in her affirmation in which she just repeated her claim as before that she cannot return to her home country as her problem still has not been resolved. 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, and accordingly I refuse her application for extension of time to appeal.