Re Nguyen Van Son

HCAL 1342/2021

[2022] HKCFI 2276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1342 OF 2021

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D E C I S I O N

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1.On 2 December 2021 I refused to grant leave to the Applicant 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 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 21 April 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 16 December 2021, and hence he was more than 4 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 4 months must be considered as substantial or inordinate, for which he explained both in his affirmation and at the hearing of his summons that he does not read or understand English and needed to seek help from his friends to prepare the necessary documents 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 without being returned through undelivered post, and while I accept that being unrepresented he would require legal assistance with his intended appeal, and it appears that he was able to do so with his present application, but that cannot itself amount to a good or valid reason for his serious delay of more than 4 months.

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 in which he stated that the decision “has been reached unfairly without allowing (him) an opportunity to clarify (his) case and situation in (his) country”, of which I take it to mean that the Court did not conduct any oral hearing for his application, but which he never requested any for his application in the first place, and which is certainly a matter entirely within the Court’s discretion, while at the hearing of his summons he was unable to show how he might have been so prejudiced as a result other than just repeating his claim as before of fear of harm from the loan shark over his family’s debts. 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