Re Nguyen the Toan

HCAL 367/2019

[2022] HKCFI 3244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 367 OF 2019

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  19 October 2022

Date of Decision:  21 October 2022

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D E C I S I O N

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1.On 28 April 2022 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 25 May 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 12 May 2022, and hence he was 13 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 13 days may not be considered as substantial or inordinate, for which he first explained in his affirmation that due to close contact with someone who had been infected by the Covid-19 virus, he therefore isolated himself in his home in late April 2022 and hence was unable to file his appeal within time, but at the hearing of his summons he gave a different explanation that he had earlier moved from Yuen Long to his current address at Sham Shui Po, and hence did not receive the decision in the mail sent to his former address, and later when he was able to retrieve the decision from his former address, 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 at Yuen Long without being returned through undelivered post, and as the Applicant was unable to recall whether or not he did update the Court of his latest address which was his duty to do so as soon as practicable, and given his conflicting evidence, I am not satisfied that he has provided a good or valid reason for his delay, but given its relative insignificance, I propose to focus on the prospect of his intended appeal.

6.However, the Applicant 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, and at the hearing of his summons he could only repeat his claim as before that he still has problem in his home country that he cannot return. 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