RE PHAM THI DINH

HCAL 382/2021

[2022] HKCFI 2326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 382 OF 2021

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D E C I S I O N

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The application

1.  The applicant applied for leave to apply for judicial review of the Decision dated 9 March 2021 made by the immigration officer on behalf of the Director of Immigration (“the Director’s Decision”) refusing the applicant’s request for making a subsequent claim, pursuant to section 37ZO of the Immigration Ordinance, Cap 115 (“the Ordinance”) for non-refoulement under the unified screening mechanism.

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 Director’s Decision.

3.  By Form CALL-1 dated 23 July 2021 (the “Court’s decision”), the Court dismissed her application for the reason that there is no realistic prospect of success in her intended judicial review. The deadline for her to file her notice of appeal is within 14 days after the Court’s decision^[1].

4.  The applicant filed a summons on 7 July 2022 for appeal against the Court’s decision out of time.

5.  In her affirmation in support of her application, she said she did not receive the Court’s decision and she missed the deadline for appeal.

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. I shall consider the merits of the case.

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.  In the application to the Immigration Department for non-refoulement claim on all the applicable grounds^[2], the applicant and her son jointly made the application and she was acting as her son’s guardian ad litem. The Director rejected their claim. They appealed to the Torture Claim Board (“the Board”). Before the Board heard their appeal, the applicant withdrew their joint appeal. The Board accepted her application and became functus officio.

10.  For reason unknown, the applicant applied for subsequent claim in her own name only. She had made this application in her own name.

11.  Having considered the applicant’s case, the Director rejected the applicant’s request for a subsequent claim for non-refoulement because there was no significant change of circumstances since her previous claim was finally determined.

12.  The applicant has no valid ground to challenge the Director’s Decision. Nor can she point out any error on the part of this Court in the assessment of her application.

13.  There is no realistic prospect of success in her intended appeal. I therefore refuse to extend time for her to appeal and I dismiss her application.