Case Document

100%Judiciary

HCAL 453/2018

[2020] HKCFI 2072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 453 OF 2018

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RE:

TRAN VAN THANH

Applicant

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 15 July 2020

Date of Decision: 27 August 2020

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D E C I S I O N

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1.On 15 January 2020 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 7 May 2020 seeks extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 29 January 2020, and hence he was late by more than 3 months with his 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 more than 3 months must be considered as substantial or excessive, for which the Applicant explained in his supporting affirmation that he was prepared to lodge his notice of appeal within the required 14-day period, but the registry was then closed and it was not until 19 February 2020 when it was opened, and when he then tried to file his appeal, he was told to seek leave from the court as by then he was deemed out of time.

5.Indeed the last day for the Applicant to file his appeal fell on the same day when the General Adjourned Period commenced as announced by the Judiciary due to the Covid-19 pandemic resulting in general closure of the court and tribunal registries from 29 January 2020 to 3 May 2020.

6.In the circumstances and given the fact that he was unrepresented and obviously required assistance to prepare his appeal and application, I am prepared to give him the benefit that he might have been prevented by the closure of the registry to file his appeal within the required period, and accordingly grant him extension of time to file his notice of appeal within 14 days of this order.