RE DO THI TUYET

HCAL 2760/2018

[2021] HKCFI 3112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2760 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 13 July 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 11 October 2021 applying for extension of time to appeal against the Court’s decision. 

5.  In her affirmation in support of her application, she repeated her reasons for leaving her own country to come to Hong Kong.

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 Board, having considered the evidence, rejected her appeal and affirmed the Director’s Decision.  The Board found that there was no evidence that the state was involved in the incidents [28]; that state protection was available to her [29]; that there was no evidence to show that the applicant would be subjected to a genuine and substantial risk of being killed by the creditor upon her return to Vietnam [31]; that she had not made out a case under the Torture risk or BOR 3 risk [35], the Persecution risk [39], the BOR 2 risk [43] and that internal relocation was an option open to her [49].

10.  The applicant has not raised any viable ground to show that she has any realistic prospect of success in her intended appeal.

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