Nguyen Duy Sang v. Torture Claims Appeal Board

HCAL 111/2021

[2023] HKCFI 1486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 111 OF 2021

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BETWEEN

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D E C I S I O N

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1.On 4 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 or merits in the extremely serious delay of more than 3 years with his intended 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 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 22 February 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 18 May 2021, and hence he was more than 1 year 9 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 more than 1 year 9 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his summons that after the Court’s decision refusing his leave application, he was prepared to return to his home country, but it was not possible for him to do so during the Covid-19 pandemic when airports were closed down and flights cancelled, but now that he has formed a family in Hong Kong and with his girlfriend pregnant with their first child, he has changed his mind and wants to stay in Hong Kong.

5.The court record shows that the decision was sent on the same day of 4 May 2021 to Castle Peak Bay Immigration Centre but was returned through undelivered post, and upon subsequent enquiry with the Immigration Department that the decision was re-sent on 16 July 2021 to his new address without being returned on this occasion. And while what he said about not being able to fly home to Vietnam during the Covid-19 pandemic and that he has since formed a family in Hong Kong may well be true, they cannot in my judgment be accepted as any good or valid reason for his such serious delay with his intended appeal.

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 in which he just claimed to have a good ground of appeal without stating what it is, nor was he able to do so at the hearing of his summons other than repeating the above and that he wants to remain in Hong Kong with his family. 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.