RE TRAN THI DAN

HCAL 1398/2018

[2021] HKCFI 3580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1398 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 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”) and the Board dismissed her appeal (the “Board’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 7 April 2021 (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 19 November 2021 applying for extension of time to appeal against the Court’s decision.

5.  In her affirmation in support of her application, she said that she does not understand English and she had to ask her friend to help her.  She does not know the deadline for appeal.  She considers that the Court’s decision is unfair without giving her a chance to clarify her case and situation in her country.

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.

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.  The delay is, of course, substantial and her reasons for the delay is unconvincing. However, I have to consider the merit of her intended appeal.

10.  The Board, having considered her evidence, dismissed her appeal and affirmed the Director’s Decision. The Board dismissed her appeal on the following reasons as referred to in the Board’s Decision:

(1)  The Board did not accept her evidence on the facts of her case and concluded that her story was fabricated. [17]

(2)  If she returned to Vietnam, the state could provide protection for her. [19]

(3)  Internal relocation was an option open to her. [36]

(4)  Based upon the above reasons, the Board reject her claim on the Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk.

11.  The applicant has not raised any viable ground to show that she has any realistic prospect of success in her intended appeal.  Nor has she set out any materials for her clarification of her case or her situation in her country for my consideration.  There is no realistic prospect in her intended appeal.

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