RE LUU THI TUYET LAN

HCAL 1149/2018

[2021] HKCFI 3541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1149 OF 2018

_____________________

_____________________

____________________

D E C I S I O N

____________________

1.  The applicant is from Vietnam.[1] She sneaked into Hong Kong from Shenzhen on 28/12/2015. She surrendered to the Immigration Department on 5/1/2016. She lodged the non-refoulement claim in this case on 3/2/2016.

2.  The basis of her claim was that she might be harmed or killed by the loan shark (“Vu”).  She had borrowed VND 500 million from Vu in August 2012 to start her business.  She was unable to repay the debt.  In May 2015, Vu came to her parents’ house demanding for repayment.  Vu threatened to kill her and take her properties.  In August 2015, Vu sent 3 men to demand for repayment.  They assaulted her and damaged her furniture.  She had bruises over her body.  They threatened to kill her unless she repaid by the end of 2015. She was in such fear that she decided to leave Vietnam.

3.  Her non-refoulement claim was rejected on 14/10/2016 by the Director.  The TCAB refused her late filing of the notice of appeal on 6/12/2017 as she was out of time for 15 days. 

4.  The applicant claimed that she was sick on the day when she was about to file her appeal.[2] However, there was no medical certificate.  Apart from the sickness, she failed to explain the whole period of delay.  The adjudicator concluded that it was not unjust to disallow late filing according to s.37ZT (3) and (4) of the Immigration Ordinance.  [3]

5.  On 20/6/2018, the applicant applied leave for judicial review. In her affirmation, she stated that she did not know the deadline of the leave application until May 2018.  She was still afraid that Vu would kill her if she returned to Vietnam.  She was out of time for more than 3 months.

6.  Deputy Judge CP Pang considered her leave application on paper.  The Judge found that the explanation was not credible.  There was no detail about her condition.  Her delay was not supported by any evidence.  The Judge pointed out that the applicant must be aware of the time limit for appeal to the TCAB as she was represented by the DLS. 

7.  The Judge went on to consider the merits of the intended judicial review. The Judge found that the ill-treatment by Vu did not amount to a minimum level of severity.  The evidence at most demonstrated a remote risk of future harm.  It did not entitle her non-refoulement protection.  There was no error of law or procedure.  There was no reasonable prospect of success in the intended judicial review. 

8.  The Judge agreed with the decision of the Director and the TCAB.  The Judge refused extension of time and also refused leave for the intended judicial review on 28/1/2021.[4]

9.  The applicant filed a summons on 4/6/2021 for extension of time to appeal against the decision.  She was out of time for more than 16 weeks.  In her affirmation, the applicant indicated that she did not receive the decision of Deputy Judge Pang.

10.  In considering whether to extend time for appeal, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the merits of the intended judicial review; (4) prejudice to the respondent.[5]

11.  There is a substantial delay of more than 16 weeks.  It is a substantial delay.  According to the court record, the decision of Deputy Judge Pang was sent to her address at Fuk Wa Street.  This was the most updated address as of 28/1/2021.  It was the same address in the Form 86 dated 20/6/2018.  There was no return of mail.

12.  The applicant had since moved to another new address at Shek Kip Mei Street as of 4/6/2021 according to her summons.  It also transpired that the applicant had moved to another new address at Cheung Sha Wan Road as of 7/7/2021 according to the record of the Immigration Department. 

13.  The applicant had never updated her addresses with this court.  She must bear the consequence of any problem in the mail because of the changes.  Her explanation is not acceptable. 

14.  As set out in paragraph 4—8 above, the adjudicator found that there was no medical evidence or any other evidence to explain her delay in filing the notice of appeal.  It was not unjust to disallow late filing.  The Judge found that there was inexcusable delay and there was no merit in the intended judicial review.  I agree with the decision of Deputy Judge Pang.  In my judgment, there is no merit in the intended judicial review.

15.  I note that in disallowing late filing of the notice of appeal in the TCAB, the adjudicator had not considered the merits of the applicant’s case as required in Re Qasim Ali.[6] Despite this irregularity, I do not think the decision of Deputy Judge Pang is flawed. 

16.  The Judge had considered the merits of the intended judicial review in the leave application.  He concluded that the evidence in support of the applicant’s claim could only indicate a remote risk of future harm.  There was no merit in the intended judicial review. 

17.  The factual background before the TCAB and Deputy Judge Pang was identical.  Since the TCAB decision, there was no change.  In my view, had the adjudicator considered the merits then, it would be inevitable that he would come to the same conclusion as Deputy Judge Pang.  In the circumstances, it would be futile to quash the TCAB decision and remit it for reconsideration given the finding of Deputy Judge Pang.[7]

18.  Having considered all relevant factors, I refuse the application for extension of time to appeal.