Re Nguyen Van Tung

HCAL 1276/2018

[2021] HKCFI 1390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1276 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 11 May 2021

Date of Decision: 21 May 2021

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D E C I S I O N

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1.On 9 December 2019 I refused to extend time to the applicant’s late application for leave to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal regarding his non-refoulement claim upon finding no good reason for his serious delay, that 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 6 January 2021 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 23 December 2019, and hence he was more than 1 year late 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 1 year must be considered as extremely substantial, for which he did not provide any explanation in his summons or supporting affirmation, nor did he appear at the hearing of his summons without any explanation. In the circumstances and as the court record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am not satisfied that he has provided any good reason for his serious delay.

5.More importantly, nor did he put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation, and as already noted he also failed to attend the hearing of his summons, As such 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 his intended appeal.

6.In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.

The applicant was not represented and did not appear