RE NGUYEN THI BINH

HCAL 948/2018

[2021] HKCFI 3375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 948 OF 2018

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D E C I S I O N

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1.  The applicant is from Vietnam.[1] She sneaked into Hong Kong on about 30/4/2015. She was arrested by the police on 31/5/2015 [2]. She filed the non-refoulement claim in this case on 14/8/2015.

2.  The applicant was in fear that she might be harmed or killed by a loan shark. In February 2014, she borrowed 400 million VND [3] from a loan shark at a monthly interest of 10 million VND. She could not repay due to failure in her garment business in August 2014. The loan shark threatened and assaulted her on many occasions. She fled to her brother’s home and stayed there until she left Vietnam for China.

3.  The Director rejected her claim on 28/4/2017. The TCAB rejected her appeal on 4/4/2018.

4.  The TCAB was doubtful about the applicant’s evidence. There were material inconsistencies and unconvincing explanations. The TCAB pointed out that despite the threat and assault since November 2014, she stayed at her shop until February 2015. She then hid at her brother’s home which was not far away from her home. She had no contact with the loan shark for over 3 years since February 2015. She delayed for about 4 months before filing a claim on 14/8/2015. She was found taking up unlawful employment then. Her conduct was inconsistent with any genuine fear of harm.

5.  On 28/5/2018, the applicant applied for leave for judicial review of the TCAB decision

6.  Deputy Judge CP Pang refused leave for judicial review. The Judge held that the adjudicator disagreed with the applicant on the evaluation of risk of harm and the possibility of internal relocation. The Judge pointed out that the adjudicator was fair in assessing her evidence. The adjudicator was entitled to reject her evidence on credibility. The Judge pointed out that the delay in filing the claim and the arrangement for a forged identity card were circumstances detrimental to her credibility. There was no error of law or procedures. There was no reasonable prospect of success in the intended judicial review. Leave was refused on 28/9/2020.

7.  The applicant filed a summons on 19/10/2020 for extension of time to appeal against the decision of Deputy Judge Pang. She was about 1 week out of time.

8.  In her affirmation, the applicant asserted that there was a good ground of appeal which had not been considered by Deputy Judge Pang.

9.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.[4]

10.  The applicant is out of time for about 1 week. It is not significant delay. There was no detail about the ground of appeal mentioned in her affirmation. It is impossible to assess the merit of that ground. This court would not accept it for the purpose of the present application. At this stage, it is also important to consider the merits of the intended appeal [5].

11.  As set out above, I agree with the TCAB decision. The applicant failed to establish that there was real risk of harm. The adjudicator was justified in discounting her credibility given the material inconsistencies and the delay. I agree with the decision of Deputy Judge Pang. The intended appeal was of no merit.

12.  In the circumstances, I refuse the application for extension of time to appeal.