Re Nguyen Van Khanh

HCAL 1354/2021

[2022] HKCFI 2227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1354 OF 2021

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  13 July 2022

Date of Decision:  27 July 2022

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D E C I S I O N

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1.On 30 December 2021 I refused to extend time to the late application of the Applicant for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal/petition regarding his non-refoulement claim upon finding that there was no good reason for his serious delay of 2 months with his application, 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 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 17 January 2022 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 the High Court, Cap 4A ended on 13 January 2022, and hence he was 4 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 4 days cannot on any view be regarded as significant and given that he was unrepresented, for which he explained in his affirmation that he does not read English and needed help from others to prepare the necessary documents for his intended appeal, but by the time he was able to do so he was 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 without being returned through undelivered post, but given the relatively insignificance of his delay, I propose to focus on the prospect of his intended appeal.

6.However, 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 in his summons, while in his affirmation he just stated that the decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country which is clearly not true as the Court did schedule an oral hearing for his leave application but he failed to attend the hearing without any explanation. As such and as he failed to attend the hearing of his present summons without explanation, 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 was not represented and did not appear