RE NGUYEN THI HOA LIEN

HCAL 533/2019

[2022] HKCFI 1964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 533 OF 2019

_______________________

_______________________

______________

D E C I S I O N

______________

Introduction

1.  This is the Applicant’s application by summons dated 12 May 2022 (the “Summons”) for extension of time to appeal my order dated 21 April 2022 (the “Order”) refusing to grant her leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 21 August 2017. Her explanation for the delay is that she contracted Covid-19 and stayed at home for self-isolation and self-medication until she felt stable. The Court doubted the genuineness of her explanation because she did not comply with the Court’s direction to produce evidence of reporting the incident to the authority or inform this Court the date when she contracted the virus. Nevertheless, she is seven days late and the Court is prepared to condone the delay, if she has good grounds of appeal. But she has not. Her grounds for application and ground of appeal is that she made a mistake about the decision in respect of which she wished to seek judicial review.

2.  The reason for refusing her application is that the Board had not made any decision dated 21 August 2017 regarding the Applicant. What happened was, for some reasons only known to herself, the Applicant sought judicial review of the Board’s decision before the Board had ever made its decision, ie while it was still deliberating. The Board subsequently made its decision dated 27 May 2019 (the “Decision”) dismissing the Applicant’s appeal against the Notice of the Director of Immigration dated 21 August 2017 refusing her application for non-refoulement protection. This Court had considered saving her Summons by amending the date of the decision sought to be reviewed, but could not possibly do so because as at the date of her Summons, that Decision did not exist. Besides, this Court could not have known what would have been her grounds for application. The Court could not make up those grounds for her. This Court could only refuse her application.

3.  The Applicant now admits her mistake and wishes to apply for extension of time to appeal my Order. What she now wishes is to seek judicial review of the Board’s Decision dated 27 May 2019. That is a different decision from the one stated in the Summons. And she wishes to do so by appealing my Order relating to a different and non-existent decision of the Board. That could not be done. As the Applicant now acknowledges, her Summons was a waste of the Court’s time. In other words, my Order is utterly without fault. She has no grounds to appeal that Order, not to mention to seek extension of time to do so. Her Summons could not be saved by any amendment. She has to start a fresh action relating to the Decision. For the above reasons, the application for extension of time to appeal is refused.

4.  This Court has to point out that the Applicant would have to apply for leave to apply for judicial review of the Decision out of time. She is almost three years out of time. She would have a very difficult hurdle to overcome in explaining the delay. Besides, she would have to advance grounds of judicial review which have good prospect of success.