Tran Van Ngoc v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2090/2018

[2023] HKCFI 368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2090 OF 2018

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D E C I S I O N

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INTRODUCTION

1.This is the Applicant’s application by summons filed on 19 January 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 11 October 2022 (the “Order”) dismissing his application for leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) and injunction.

2.Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order was made. By 19 January 2023 when the Summons was filed, it was two months and twenty-five days out of time. In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted.

LENGTH OF DELAY AND EXPLANATION FOR THE DELAY

3.The delay of two months and twenty-five days is very substantial in the context of a fourteen-day appeal period. No explanation for the delay was offered other than that he would like to apply for extension of time to appeal. He never took the time limits in legal proceedings seriously. As was mentioned in paragraphs 6 and 8 of the Form CALL-1, he was about two months late in applying for leave to apply for judicial review and he gave no explanation for the delay. He is now almost three months late in raising an appeal. His conduct reflects an absence of a will to seriously prosecute his intended appeal. These findings weigh heavily against granting an extension of time.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

4.The ground of his intended appeal as stated in his supporting affirmation is that to his understanding “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review”; but he has not spelt out this “good ground of appeal” at all. He fully understood the need to state his grounds of the intended appeal. That was why he mentioned he had a good ground of appeal in his supporting affirmation. That is not enough to support his application for extension of time. Such conduct not only further evinces an absence of a will to seriously prosecute his intended appeal but also reflects an absence of a good ground of appeal.

5.He did not advance any grounds for his application for leave to apply for judicial review other than repeating his case and his fear of harm. On the fact, the Board had assessed his application for non-refoulement protection on the basis of the case as he asserted but found his risk of harm was remote and he could further avoid that risk by internal relocation: see paragraphs 14 to 18 of the Form CALL-1. Hence, the Board refused his application. For reasons as explained in paragraphs 20 to 22 of the Form CALL-1, after having rigorously examined the Decision with anxious scrutiny, this Court was satisfied that the Board’s Decision had not been tainted by errors of law, procedural unfairness or irrationality and hence refused his application for leave to apply for judicial review. Thus, by his intended appeal, the Applicant is in effect seeking to challenge this Court’s finding that the Board’s Decision has not been tainted by any of the above vitiating factor which are the sole grounds on which this Court may review the Decision of the Board; but he has not provided any grounds for challenging this Court’s decision. Thus, his intended appeal has no prospect of success. This finding is fatal to his application for extension of time.

PREJUDICE TO THE RESPONDENT

6.The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement, particularly this is his second delay. To allow the challenge to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance. Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

7.The Applicant has no arguable grounds of appeal and has no valid explanation for the very substantial delay. His intended appeal has no prospect of success. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, his application for extension of time to appeal is refused.

The Applicant is not represented