NGUYEN THI THANH HOA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1298/2022

[2023] HKCFI 1761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1298 OF 2022

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D E C I S I O N

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1.  On 18 April 2023 I refused to extend time to the seriously 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 appeal/petition regarding her non-refoulement claim upon finding that there was no good reason for her extremely serious delay of some 15 months with her application, that none of her proposed grounds were reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in her 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 4 May 2023 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 the High Court, Cap 4A expired on 2 May 2023, 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of 2 days cannot on any view be considered as significant, for which she explained at the hearing of her summons that as an unrepresented claimant she was not aware of the 14-day deadline for the filing of Notice of Appeal, and that by the time she was so informed by her friends, she was already out of time with her intended appeal.

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and while ignorance of the procedural rules can never be accepted as any valid excuse for their non-compliance, given the insignificance of her delay, I propose to focus on the prospect of her intended appeal.

6.  However, 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 her affirmation in which she asserted that there is a good ground of appeal but without stating what it is, nor was she able to do so at the hearing of her summons other than just repeating her claim as before that her life will still be in danger in her home country. 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. I accordingly refuse her application for extension of time to appeal, and dismiss her summons.