Nguyen Van Thuy v. Torture Claims Appeal Board

HCAL 1074/2018 and
HCAL 1078/2018
(Consolidated)

[2022] HKCFI 2464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1074 OF 2018

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BETWEEN

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1078 OF 2018

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BETWEEN

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(Consolidated pursuant to the Order of
Deputy High Court Judge Bruno Chan dated 2 February 2021)

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D E C I S I O N

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1.On 30 December 2021 I granted leave to all 3 Applicants, a married couple and their daughter from Vietnam, to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their appeal/petition regarding their non-refoulement claim, and accordingly directed them to file and issue their originating summons within 14 days of the decision, and to serve a copy thereof on the Board as respondent and the Director of Immigration (“Director”) as interested party.

2.The Applicants now by a summons issued on 27 June 2022 seek extension of time for them to file and issue their originating summons, as the time for them to do so under that order had expired on 13 January 2022, and hence they were more than 5 months out of time with the filing of their originating summons.

3.Such a delay must be considered as very substantial or inordinate, for which the Applicants explained at the hearing of their summons that they never received the decision in the mail, and that it was only later when they reported on their recognizance that they were informed of the decision, when by then they were already out of time to file their originating summons, but after they had obtained legal assistance to make their present application for extension of time for their originating summons, the Applicant in HCAL 1074/2018 then lost his recognizance papers without which he was not allowed to make his affirmation, and had had to re-apply for a replacement from the Immigration Department which also took some time, and which explained for their present delay.

4.The court record shows that the decision was sent on the same day to the Applicants’ last reported address without being returned through undelivered post, but upon hearing their explanation at the hearing, and upon their undertaking to immediately seek legal representation either on private basis or through Legal Aid to proceed with their application for judicial review, I am prepared to give them the benefit of the doubt for their explanation, and extend time for them to file and issue their originating summons within 21 days of this decision.

The Applicants appeared in person