DANG THUY TRINH v. TORTURE CLAIMS APPEAL BOARD

HCAL 149/2019

[2024] HKCFI 1754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 149 OF 2019

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D E C I S I O N

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1.  On 24 November 2021 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim upon finding that 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 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 20 May 2024 seeks extension of time to appeal against that decision, 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 8 December 2021, and hence she was some 2 years 5 months 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 2 years 5 months must be considered as extremely substantial and inordinate, for which she first explained in her affirmation that she never received the decision in the mail, and that it was only much later when she was informed by her immigration officer of the decision, but by then she was already out of time with her intended appeal.

5.  At the hearing of her summons the Applicant then gave a different explanation for her delay in that 2 years ago she had just given birth to her child and had been too busy taking care of her new born baby that she could not find time to proceed with her intended appeal until now.

6.  The court record shows that the decision was sent on the same day of 24 November 2021 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any relevant details or reliable evidence to corroborate either of her bare assertions, I am not satisfied that the Applicant has provided any good or valid reason for her such serious delay.

7.  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 decision or why it may reasonably be argued that the decision was unfair or unreasonable either in her summons or her affirmation, nor was she able to do so at the hearing of her application. 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.

8.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal by the Applicant. Accordingly, I refuse her application for extension of time to appeal, and dismiss her summons.