RE LE THI ANH

HCAL 2827/2018

[2022] HKCFI 73

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2827 OF 2018

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant and she lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director rejected her application and she appealed to the Torture Claims Appeal Board (the “Board”) and the Board dismissed her appeal (the “Board’s Decision”).

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Order dated 10 September 2021 (the “Court’s decision”), the Court dismissed her application for the reason that there was no realistic prospect of success in her intended application.

4.  The applicant filed a summons on 14 December 2021 applying for extension of time to appeal against the Court’s decision.

5.  In her affirmation in support of her application, she said “Because the order dated 10 September 2021 was written in English, I did not understand English and I did not know if there was a deadline for filing an appeal at that time. I needed detailed analysis and asked friends who know how to appeal help me. … The Decision made the High Court has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country.”

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

7.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

8.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

9.  The delay is over 2 months and her reason for the delay is unconvincing. However, I have to consider the merit of her intended appeal.

10.  The applicant claimed that, if refouled, she would be harmed or killed by the creditor and his people. In 2013, she borrowed 300 million Vietnamese currency from the creditor for her fishery business, which failed. She was unable to repay her debt. The Director found that her claim was not substantiated by evidence. She appealed to the Board.

11.  The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision.

12.  The applicant has not raised any viable ground to show that she has any realistic prospect of success in her intended appeal. Nor has she set out any reasons to show that the Court’s decision was in error. There is no realistic prospect in her intended appeal.

13.  In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.