TRAN THI NGAN v. DIRECTOR OF IMMIGRATION

HCAL 245/2022

[2025] HKCFI 4169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 245 OF 2022

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D E C I S I O N

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1.  On 11 March 2025 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Director of Immigration (“Director”) refusing to allow her request to make a subsequent claim essentially based on the same factual basis of her previous claim which had earlier been properly and finally disposed of by the Director on all the applicable grounds under the Unified Screening Mechanism (“USM”) consequential to her withdrawal of her appeal against the Director’s decision to the Torture Claims Appeal Board (“Board”) and was subsequently repatriated to her home country but later sneaked back into Hong Kong again to try to raise her subsequent claim, and upon finding none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director or in his decision, and that there was no reasonable prospect of success in her intended application.

2.  The Applicant now by a summons issued on 3 April 2025 seeks leave to appeal against that decision out of time, as the 14-day period after the decision within which to file her appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap. 4A expired on 25 March 2025, and hence she was some 9 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 the intended appeal; and (iv) the prejudice to the respondent if 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 Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of 9 days may not be considered as substantial or inordinate, but for which she did not provide any reason or explanation in her summons or affirmation which appear to have been prepared with legal assistance, nor did she subsequently attend the scheduled hearing of her summons without any explanation.

5.  The court record shows that the decision was sent on the same day of 11 March 2025 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any explanation from her, I am unable to see any good or valid reason for her albeit insubstantial delay.

6.  More importantly, 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 Court’s decision or why it may reasonably be argued that the decision was unfair or unreasonable either in her summons or in her affirmation in which she just repeated her claim as before and with what appears to be an explanation for her withdrawal of her appeal to the Board in her previous claim but which has no relevancy to her intended challenge of the Director’s refusal to allow her to make a subsequent claim or of the Court’s decision, and as noted above nor did she attend the hearing of her summons without any explanation. As such, and in the absence of any error in the Court’s 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. Accordingly, I refuse to grant leave to the Applicant to appeal out of time, and dismiss her summons.