Re Thai Manh Tuan

HCAL 558/2021

[2022] HKCFI 3294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 558 OF 2021

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 19 October 2022

Date of Decision: 1 November 2022

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D E C I S I O N

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1.On 10 May 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 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 10 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 24 May 2021, and hence he was almost one year 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 almost one year must be considered as extremely substantial and inordinate, for which he first explained in his supporting affirmation which appears to have been prepared with legal assistance that he does not speak English and therefore needed help from his friends to explain the decision to him and to help him with his intended appeal but by then he was already out of time.

5.At the hearing of his summons the Applicant gave a different explanation in that he was in prison at Tong Fuk Correctional Institution for the offence of theft between late 2020 and May 2021, and upon his discharge from prison he then moved to his present address in Sham Shui Po, but at all material times he never received the decision in the mail either sent to the prison or his present address, and that it was only sometime in May 2022 when he reported on his recognizance that he was so informed by his immigration officer, but by then he was already seriously out of time with his intended appeal.

6.The court record shows that the decision was indeed sent on 10 May 2021 to the Applicant’s then last reported address at Tong Fuk Correctional Institution as provided by the Immigration Department which was however returned through undelivered post, of which I suspect because the Applicant had by then already been discharged from prison, and upon further enquiry with the Immigration Department, the decision was resent on 16 July 2021 to the Applicant’s current address at Sham Shui Po without being returned through undelivered post, in which case the Applicant would still be almost 10 months late with his intended appeal, and given his 2 conflicting explanations and the lack of further details or evidence from him to corroborate either of his bare assertions, I am not satisfied that the Applicant has provided a good or valid reason for his such serious delay.

7.More significantly, 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, while in his affirmation he just made a bare assertion that the decision was reached unfairly without allowing him an opportunity to clarify his case or the situation in his home country, when the fact is that he never requested for any oral hearing for his leave application in the first place, while at the hearing of his summons when he was invited to provide his proposed grounds of appeal, he just stated that he would like to remain in Hong Kong. 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.

8.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