Re Nguyen Phien Hieu

HCAL 393/2021

[2022] HKCFI 190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 393 OF 2021 

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D E C I S I O N

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1.On 21 May 2021 I refused to extend time to the seriously late application of the Applicant for leave 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 that there was no good reason for his extremely serious delay of more than 2 years, 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 (“the Director”) or of 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 9 August 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 4 June 2021, and hence he was more than 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 more than 2 months must be considered as very substantial or inordinate, for which he explained at the hearing of his summons that he was released from the Castle Peak Bay Immigration Centre (“CIC”) sometime in March 2021 when he then moved to a residential address but of which he only informed the Immigration Department and not the court, and hence he did not receive the decision in the mail, and was not aware of it until he was later 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 first sent on 21 May 2021 to the Applicant at his last reported address at CIC but was subsequently returned through undelivered post, and upon enquiry with the Immigration Department, the decision was re-sent on 8 June 2021 to the Applicant’s latest residential address as the same stated in his present application without being returned through undelivered post on this occasion.

6.Accordingly, even if one were to ignore the fact that it was in the first place the Applicant’s duty to inform the Court of his new address as soon as practicable upon his release from CIC which would put it sometime in March 2021 but which he failed to do as he readily conceded at the hearing, and hence it was entirely his own fault for not receiving the decision in May 2021, but after the decision was re-sent on 8 June 2021 which would put the 14-day period for him to file his appeal further to 22 June 2021, the Applicant still failed to do so until some 7 weeks later on 9 August 2021 when he issued his summons for extension of time without any further justification, and for which I am unable to see any good reason for such serious delay.     

7.More importantly, the Applicant has 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 either in his summons or in his affirmation in which he just repeated his claim as before of fear of harm from his creditor over his unpaid debts, nor was he able to put forth any proposed ground for his intended appeal at 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.   

8.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