RE HOANG THI MUOI

HCAL 1501/2021

[2022] HKCFI 2226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1501 OF 2021

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D E C I S I O N

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1.  On 30 December 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her appeal/petition regarding her non-refoulement claim upon finding that none of her proposed grounds were reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in her intended application.

2.  The Applicant now by a summons issued on 17 January 2022 seeks extension of time to appeal against that decision, as the 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of the High Court, Cap 4A ended on 13 January 2022, and hence she was 4 days late with her intended appeal.

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of 4 days cannot on any view be regarded as significant, for which she explained in her affirmation that she never received the decision in the mail and therefore had no knowledge about it but without providing any further details or particulars or elaboration in support of her assertion, nor did she attend the hearing of her summons without any explanation.

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and in the absence of any further information or evidence such as how did she eventually come to learn about the decision which she claimed never to have received but which she now seeks leave to appeal to corroborate her bare assertion, I am not satisfied that she has provided any good reason for her delay, but given its relatively insignificance, I propose to focus on the prospect of her intended appeal.

6.  However, the Applicant has failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable in her summons, while in her affirmation her complaint that the decision was reached unfairly without allowing her an opportunity to clarify her case and situation in her home country is clearly incorrect as the Court did schedule an oral hearing for her leave application but she failed to attend the hearing without any explanation. As such and as noted that she failed to attend the hearing of her summons without any explanation, and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in her intended appeal.

7.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse her application for extension of time to appeal, and dismiss her summons.