RE TRAN THI TINH

HCAL 1189/2018

[2022] HKCFI 3723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1189 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 by staying in Hong Kong without permission 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”). Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected her appeal and affirmed the Director’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 20 September 2022 (“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 24 November 2022 applying for extension of time to appeal against the Court’s decision. In her affirmation in support of her application she said she does not have legal advice. She believes that she has a good ground of appeal and it is not necessary to be considered at this stage of application.

Discussion

5.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

6.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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. The deadline for her appeal is 4 October 2022. The applicant is late for 1 month and 20 days. The delay is serious. However, I shall now consider the merits of her case.

7.  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].”

8.  The applicant claimed that, if refouled, she would be harmed by three moneylenders, Hoang, Doan and Nguyen (collectively, the “Moneylenders”) upon her return to Vietnam because of her inability to repay her debt owed to them.

9.  The Director refused her application because her claim was unsubstantiated. She appealed to the Board.

10.  In summary, the Board found the Applicant incredible.  It rejected her claims about having borrowed from the Moneylenders and having been ill-treated by them as completely false and fabrications on her own.  Accordingly, the Board found she had failed to prove the factual basis in support of her claim for non-refoulement protection under any of the four applicable grounds under the USM.

11.  It is wrong for the applicant to think that she does not have to state the ground in support of her application. In the above Court of Appeal case, the Court of Appeal held that she has to show the merits of her intended appeal. The applicant has not been able to raise any valid reason to show that she has a realistic prospect of success in her intended appeal.

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