NGUYEN THI HOA LIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.   Extension of time to apply for leave for Judicial Review be refused; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 12 July 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 27 May 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration in his Notice of Decision refusing her application for non‑refoulement protection.

The law and explanation for the late application

2.  The leave application was filed thirty-seven months and sixteen days after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application had not been lodged promptly, being made almost thirty-fore and half months after the date of the Decision sought to be reviewed.  Extension of time to file the leave application is required.

3.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two.  Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung [2], per Litton PJ. 

4.  Despite clear warning in the Form 86 that an applicant is required to state her reasons for delay, the Applicant did not comply.  At the hearing, after the legal principles as mentioned in the above paragraph had been explained to her, she insisted that she had never received the Decision.  After much prompting, she said that she lived in an address in Sham Shui Po when she filed the Notice of Appeal and when she attended appeal hearing before the Board.  She lived there until 2021 when she was arrested for taking up unlawful employment and held in jail custody.  Up till then, she had never received the Decision.  When she was about to be released, she was asked whether she would like to return to Vietnam.  Then, she telephoned her children in Vietnam and learned that the moneylender who threatened to kill her was still looking for her and threatening to kill her.  As her life will be in danger returning to Vietnam, she made the leave application.  Of course, her account could not explain why she would have filed the Form 86 to apply for leave to apply for review of that Decision, if she had never received it in the first place. 

5.  The Applicant’s account was very confusing and inconsistent.  She avoided answering the Court’s questions on when she received the Decision, but proffered explanation on why she applied for review.  Her behaviour suggested that she was evading the Court’s question and making up her story as she was giving her explanation.  The Court does not accept she had not received the Decision.  Her Form 86 was filed more than thirty-four and a half months out of time. 

6.  Furthermore, according to the Applicant, she had to report to the Immigration Department for her recognisance once every two to six weeks.  She must have reported a few times to the Immigration Department after the Decision was issued.  On one of those reporting occasions, an immigration officer must have discussed with her about her repatriation arrangements.  In that context, she must have been told that her appeal had been dismissed.  Despite repeated prompting, she adhere to her impossible story. 

7.  Even accepting her assertion that she had never received the Decision in 2019 when she was residing in Sham Shui Po, which this Court does not, on her above account when she was asked whether she wished to return to Vietnam after serving her sentence, she must have been told in that context that her appeal had been dismissed.  She could not remember when in 2021 she was asked that question.  Even if that happened on the last day of 2021, she took more than six months to make up her mind to file the leave application.   

8.  Either way, the delay falls within the ‘many months’ category for which leave may be refused “however strong the complaint might otherwise be”.  The Court therefore found she had no reasonable explanation for the delay.  There is no need to consider the merits of her leave application.

Conclusion

9.  For the above reasons, leave to file the Form 86 out of time is refused and her application for leave to apply for judicial review is also refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1