Re Pham Van Luan

HCAL 1446/2018

[2021] HKCFI 2530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1446 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 24 August 2021

Date of Decision: 2 September 2021

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D E C I S I O N

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1.On 30 April 2021 I refused to extend time to the applicant’s late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal regarding his non-refoulement claim upon finding that there was 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 of Immigration (“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 28 May 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 14 May 2021, and hence he was 14 days 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 14 days may not be said to be insignificant, for which he explained in his affirmation that he was unrepresented and hence was not aware of the 14-day rule for the filing of notice of appeal, and by the time he was able to get legal assistance, he was already out of time with his intended appeal.

5.The court record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, while ignorance of the rules can never be accepted as an excuse for their non-compliances. In the circumstances I am not satisfied that the applicant has provided any good reason for his delay.

6.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 arguable that the decision was unfair or unreasonable either in his summons or his affirmation, while he also failed to attend the hearing of his summons without explanation. 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 either.

7.In the premises, and for the reasons given, 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