RE NGUYEN THI DUNG

HCAL 1441/2018

[2021] HKCFI 2049

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1441 OF 2018

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D E C I S I O N

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1.  The applicant is from Vietnam.[1] She came to Hong Kong in May 2012 illegally. She was arrested for illegal employment and sentenced to imprisonment for 12 months on 12 May 2012. She was sent back to Vietnam in January 2013.

2.  She came to Hong Kong again illegally and was arrested by the police on 10/7/2015.  She filed the non-refoulement claim in this case on 17/7/2015 and 12/8/2015.

3.  She feared that her ex-husband and the creditor (‘Dai’)  would harm or kill her if she returned to Vietnam.  She could not repay the loan of one billion VND owed to Dai. [2]

4.  The Director rejected her claim on 24/6/2016 [3]and 19/9/2017[4]. The TCAB rejected her appeal on 13/7/2018. 

5.  On 23/7/2018, the applicant applied for leave for judicial review of the TCAB decision.  Deputy Judge CP Pang refused leave on 30/3/2021.

6.  Deputy Judge Pang pointed out that it was for the TCAB to assess the evidence and the risk of harm.  The Judge found no error of law nor procedural unfairness.  There was no factual basis to support any of the applicable ground. There was no reasonable prospect of success in the intended judicial review.

7.  The applicant filed a summons on 22/4/2021 for extension of time to appeal against the decision of Deputy Judge Pang.  She was 9 days out of time.

8.  In her affirmation, the applicant asserted that she did not have the means to take legal advice.  She asserted that there was a good ground of judicial review which was not considered by Deputy Judge Pang.  It justified extension of time for appeal.

9.  In considering whether to extend time for appeal upon the refusal of a leave application, this court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted.[5]

10.  The applicant is out of time for 9 days.  It is a delay albeit not substantial.  She alleged that she had no resources to obtain legal advice.  She thus missed the time limit.  She mistakenly thought that she lost the right to appeal.  The time limit for appeal was clearly set out in the law.  She could have made enquiry with the court.

11.  She mentioned a good ground for judicial review which would justified extension of time for appeal.  However, she mentioned nothing about this ground. This court could not act on this assertion.

12.  I do not accept the above reasons.  However, the important issue at this stage is the merits of the intended judicial review.[6]

13.  In 2013, the applicant and her ex-husband borrowed from ‘Dai’ one billion VND to set up a recycling business.  The monthly interest was 20 million VND.  The business was not successful.  She was unable to repay the debt.  She and her ex-husband were forced to traffic dangerous drugs for ‘Dai’.  She refused and was detained by ‘Dai’ for 4 months.  She was physically and sexually assaulted during that time.  She managed to escape.  She came to Hong Kong illegally on 3/5/2015.  She was arrested by the police on 10/7/2015.

14.  The adjudicator pointed out that the net profit of the recycle business was 2-3 million VND.  It was about the same income the applicant previously earned in making clothes at home.  The reason for raising the huge loan to start a new business was not convincing.  Her evidence was contradictory about the time of divorce.  She even said she divorced her husband secretly without court order.  She was evasive about the relationship with her ex-husband.  The drug trafficking activities as she described was illogical.  She was inconsistent as to how she knew about the drugs.  Her evidence about the rape while in detention was vague. She failed to mention this earlier in her written representation.  The evidence in relation to her escape was too coincidental to be true.

15.  The adjudicator found that the applicant failed to establish the primary facts of her claim.  Her evidence was illogical and therefore rejected.

16.  I agree with the judgment of Deputy Judge Pang.  I also agree with the findings of the adjudicator.  The applicant failed to establish that there was real risk of harm.  The intended judicial review was of no merit.

17.  In the circumstances, I refuse the application for extension of time to appeal.