Pham Gia Kien v. Torture Claims Appeal Board

HCAL 584/2019

[2023] HKCFI 1257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 584 OF 2019

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BETWEEN

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D E C I S I O N

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1.On 8 September 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 his 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 11 January 2023 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 22 September 2022, and hence he was some 3 ½ 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the applicant’s case, a delay of 3 ½ months must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that he never received the decision in the mail, and was only informed of it later by his immigration officer when he reported on his recognizance, but by then 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 without being returned through undelivered post, and in the absence of any evidence to corroborate his bare assertion, I am not satisfied that the applicant has provided any good or valid reason for his delay.

6.More importantly, the applicant also 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 his affirmation, and at the hearing of his summons he could only repeat his claim as before of still having 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