Re Pham Van Nham

HCAL 1050/2021

[2022] HKCFI 1348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1050 OF 2021

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D E C I S I O N

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1.On 10 September 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“Director”) in refusing to allow him to make a subsequent claim for non-refoulement protection upon finding that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director or in his decision, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 28 October 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 24 September 2021, and hence he was almost 5 weeks 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 almost 5 weeks must be considered as very substantial or inordinate, for which he explained in his supporting affirmation that he does not read English and was not aware of the 14-day rule to file his appeal, and had had to seek help from others but by the time he was able to do so and was ready to proceed with his appeal, he was then already out of time.

5.The court record shows that the decision was sent on the same day to the Applicant’s last reported address, and ignorance of the rules cannot be accepted as any excuse for their non-compliance, and while I accept that the Applicant being unrepresented and cannot read English would need to seek legal assistance for his litigation, and which he eventually did for his present application, I am not satisfied that these are sufficient justifications 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 in his affirmation in which he just stated that the decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country, when the fact is that he never requested any oral hearing for his leave application, and despite being invited to do so at the hearing of his summons, he could only repeat his claim of fear of being killed by his creditor over his outstanding debts as before. 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