Re v. Quoc Hung

HCAL 1969/2018

[2022] HKCFI 2279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1969 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 20 July 2022

Date of Decision: 3 August 2022

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D E C I S I O N

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1.On 31 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 3 ½ weeks 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 30 June 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 14 January 2022, and hence he was more than 5 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 5 months must be considered as very substantial or inordinate, for which he explained at the hearing of his summons that he never received the decision in the mail as he was then in prison serving a sentence for theft from October 2021 until June 2022, and that thereafter he was transferred to the Castle Peak Bay Immigration Centre (“CIC”) where he was only informed by his immigration officer of the decision, but by then he was already out of time with his intended appeal. The Applicant did not provide any documentary evidence in support of any of his assertions.

5.The court record shows that the decision was sent on the same day to the Applicant’s last reported residential address at Mongkok, Kowloon without being returned through undelivered post, and if the Applicant was then indeed serving a sentence in prison and therefore did not receive the decision sent to his residential address, it was his duty to so inform the authorities including the Court as soon as practicable of such change, in particularly when he was then expecting the result of his leave application for judicial review from the Court, but which he only did some 8 months later on 24 June 2022 when he wrote to inform of his subsequent transfer from prison to CIC, and hence he has only himself to blame for being late with his intended appeal, and I am not satisfied that he has provided a good or valid 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, and at the hearing he could only repeat his claim as before of fear of being killed by his creditor over his outstanding debts, and that he has health issues which he wants to remain in Hong Kong for medical treatment which of course can never be considered as a proper ground for his appeal. 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