RE TRINH THI HONG THU

HCAL 151/2021

[2021] HKCFI 2568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 151 OF 2021 

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D E C I S I O N

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1.  On 20 April 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“Director”) in refusing to allow her to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by the Director without appeal and after her repatriation upon finding no reasonably arguable ground had been put forth for her intended challenge, that there was no error of law or procedural unfairness in her process before the Director or in the decision which found that the applicant’s request to make a subsequent claim was based on the same facts and basis as before without any significant change of circumstances since her previous claim was finally determined, or that such change when taken together with the materials previously submitted in support of her previous claim would give the subsequent claim a realistic prospect of success, and that there was no reasonable prospect of success in her intended application.

2.  The applicant now by a summons issued on 6 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 4 May 2021, and hence she was 2 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 2 days may not be considered as significant, for which she explained in her supporting affirmation that she never received the decision, but without any details or particulars of how and when she learnt about the decision that she now seeks to appeal, nor did she attend the hearing of her summons so as to do so.

5.  The court record shows that the decision was sent on the same day to her last reported address, and in the absence of any further details or documentary evidence to corroborate her bare and vague assertions, I am not satisfied that the applicant has provided any good reason for her delay, but given its relatively insignificance, I propose to focus on the prospect of her intended appeal.

6.  However, the applicant did not 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 be reasonably arguable that the decision was unfair or unreasonable either in her summons, or in her affirmation in which she merely repeated her claim of fear of being killed by her creditor over her debts if refouled to her home country, nor did she attend the hearing of her summons without any explanation.  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.