Re Dong Van an

HCAL 1003/2018

[2021] HKCFI 3456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1003 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 10 November 2021

Date of Decision: 23 November 2021

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D E C I S I O N

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1.On 22 April 2021 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal/petition regarding 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 of Immigration (“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 5 July 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 6 May 2021, and hence he was 2 months 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 2 months must be considered as substantial or inordinate, for which he explained at the hearing of his summons that he never received the decision in the mail, and that it was only later when he reported on his recognizance that he was informed by his immigration officer, but by then 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 the applicant’s last reported address, and in the absence of any details or documentary evidence to corroborate his bare assertions, I am not satisfied that the applicant has provided any good reason for his delay.

6.More importantly, the applicant has also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable in his summons, and in his supporting affirmation and at the hearing of his summons he just repeated his claim as before of fear of harm from his creditor over his outstanding debts that he feels that he must appeal against the decision. 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.

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

The applicant appeared in person