NGUYEN THI KIM ANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 709/2019

[2023] HKCFI 526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 709 OF 2019

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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 by staying in Hong Kong without permission 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”). Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected her appeal and affirmed the Director’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 19 January 2023 (“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 7 February 2023 applying for extension of time to appeal against the Court’s decision. In her affirmation in support of her application, she said that she has good grounds, but it is unnecessary for her to disclose at this stage.

Discussion

5.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

6.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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. The deadline for her appeal is 3 February 2023. The applicant is late for 4 days only. I shall now consider the merits of her case.

7.  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].”

8.  The applicant claimed that, if refouled, she would be harmed or killed by her creditor, Thang.

9.  The Director refused her application because her claim was unsubstantiated. She appealed to the Board.

10.  Having considered the evidence, the Board found that her evidence was not credible; state protection and internal relocation were available to her. The applicant’s appeal was therefore dismissed.

11.  The applicant is under a misconception that she can conceal her reasons in support of her application. This is not only erroneous, but also unreasonable as she must be aware that she is making her application and it is for her to back up her application with reasons. The applicant has not been able to raise any valid reason to show that she has a realistic prospect of success in her intended appeal.

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