NGUYEN THI THUY v. TORTURE CLAIMS APPEAL BOARD

HCAL 857/2024

[2024] HKCFI 3485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 857 OF 2024

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BETWEEN

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D E C I S I O N

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1.  On 10 September 2024 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 non-refoulement claim upon finding that there was no good reason for her serious delay of more than 2 months with her application, that none of the grounds put forward by her was reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) 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 22 October 2024 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file her appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 24 September 2024, and hence she was some 4 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 the intended appeal; and (iv) the prejudice to the respondent if 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 4 weeks must be considered as substantial and inordinate, for which she explained at the hearing of her summons that she was then being detained at Lo Wu Correctional Institution (“Lo Wu”), and that she had had to seek help from her friends outside with her appeal, but by the time she was able to do so, she was already out of time to file her intended appeal.

5.  The court record shows that the decision was sent on the same day of 10 September 2024 to the Applicant’s then detention at Lo Wu without being returned through undelivered post, and with assistance from welfare officers stationed there the Applicant could have filed her appeal within the required period without delay. In the circumstances I am not satisfied that she has provided a good or valid reason for her serious delay.

6.  More importantly, the Applicant also 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 in her affirmation, nor was she able to do so at the hearing of her summons other than just repeating her claim as before. 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. Accordingly, I refuse her application for extension of time to appeal, and dismiss her summons.