Re v. Trung Tu

HCAL 1522/2018

[2023] HKCFI 123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1522 OF 2018

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D E C I S I O N

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1.On 18 May 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 more than 2 months 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 merit or reasonable prospect of success in his intended application.

2.The applicant now by a summons issued on 14 September 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 expired on 1 June 2021, and hence he was more than 15 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 15 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his summons that upon receiving the decision in the mail sometime in May 2021, he had wanted to appeal against the decision, but then he discovered that he had lost his recognizance paper which he would require for identification purpose before he would be allowed to file his appeal papers, and so he immediately attended at the Immigration Department for a replacement but which however took a long time for him to obtain one until sometime in September 2022, but by then he was already way out of time with the filing of his intended appeal.

5.The court record shows that the decision was sent on the same day of 18 May 2021 to the applicant’s last reported address without being returned through undelivered post, while his replaced recognizance paper which he was asked to produce at the hearing shows that it was actually re-issued to him on 13 January 2022 which was some 8 months earlier than as he alleged, for which he then explained that he was then too busy looking after his children who however according to his earlier statement given to the Immigration Department had been left behind in his home village in Vietnam with his relatives when he himself departed for Hong Kong. In the premises, I am not satisfied that the applicant has provided any true or valid reason for his serious delay.

6.More importantly, nor did the applicant 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 that at the hearing of his summons he could only state that he just wants to see his children grow up 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.

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