RE NGUYEN THI KHANH HOA

HCAL 1592/2021

[2022] HKCFI 2071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1592 OF 2021

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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 remaining in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decisions, 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 Decisions.

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 Form CALL-1 dated 31 December 2021 (the “Court’s decision”), the Court dismissed her application for the reason that there is no realistic prospect of success in her intended judicial review. The deadline for her to file her notice of appeal is within 14 days after such order[1].

4.  The applicant filed a summons on 22 June 2022 for appeal against the Court’s decision out of time.

5.  In her affirmation in support of her application, she said she did not receive the Court’s decision because she had changed her address, but she did not update the court’s record because she does not speak English or Cantonese.

Discussion

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

7.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (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. I shall consider the merits of the case.

8.  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].”

9.  The applicant claimed that if refouled, she would be harmed or killed by Nguyen Van Thin, the creditor, from whom she had borrowed 600 million Vietnamese Dong and she had defaulted in the loan repayment.

10.  The Director found that her claim was not substantiated and, by 2 Decisions, on on Torture risk, BOR 3 risk and Persecution, the other on BOR 2 risk, refused her application. She appealed to the Board.

11.  A hearing was fixed for her on 30 March 2017. But she was absent. The Board then gave due notice to her under section 15 of Schedule 1A of the Ordinance. She did not reply to the notice. The Board then proceeded to consider her appeal on paper.

12.  The Board, having considered the evidence, rejected her appeal and affirmed the Director’s Decisions. The Board found that the applicant’s fact was unable to satisfy the requirements for Torture risk, BOR 2 risk, BOR 3 risk or Persecution risk. Her appeal was therefore dismissed. [76-79] The references refer to the Board’s Decision.

13.  The applicant has no valid ground to challenge the Board’s Decision. Nor can she point out any error on the part of this Court in the assessment of her application.

14.  There is no realistic prospect of success in her intended appeal. I therefore refuse to extend time for her to appeal and I dismiss her application.