Re Tran Van Thanh

HCAL 453/2018

[2022] HKCFI 1338

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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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  4 May 2022

Date of Decision:  18 May 2022

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D E C I S I O N

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1.On 27 August 2020 I extended time of 14 days for the Applicant to appeal against my earlier refusal to grant leave for him to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) regarding his non-refoulement claim upon finding that the 14-day period for him to appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A happened to be within the months when the High Court Registry was then closed due to the Covid-19 pandemic, and I therefore allowed him a further 14-days up to 10 September 2020 to file his Notice of Appeal.

2.The Applicant however did not do so, and more than one year later on 30 September 2021 he issued another time summons for extension of time to file his appeal, and in his supporting affirmation he claimed to have never received the order of 27 August 2020 in the mail even though he had never changed his address, and that it was only sometime in September 2021 when he reported on his recognizance that he was told by his immigration officer that his case was finished, and it was then when he came to the Court to make enquiry about his case that he was given a copy of the decision but by then he was way out of time to file his 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 one year must be considered as extremely substantial or inordinate, and at the hearing of his summons he confirmed what he had stated in his supporting affirmation, but was unable to provide any further details or documentary evidence in support of his statement.

5.The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, but even if for whatever reason it indeed never reached the Applicant in the mail, given that he had intended to appeal as early as on 7 May 2020 when he issued his first time summons, if he had indeed not heard from the Court since, surely he would and should have made enquires about his summons or application much earlier than until more than one year later in September 2021 when he allegedly only found out from his immigration officer. It simply defies both common sense and his duty to prosecute his case diligently and in a timely manner, especially for applications of this nature. In the circumstances, 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 such serious delay.

6.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 his affirmation, nor was he able to do so at the hearing of his summons. As such, and given the fact that the previous extension of time granted to him was due to procedural technical reason rather than on merits or prospect of his intended appeal, 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