Duong Van Cuong v. Torture Claims Appeal Board

HCAL 1264/2019

[2023] HKCFI 1934

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1264 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 24 May 2023 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 16 June 2023 seeks extension of time to appeal against the Court’s 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 7 June 2023, and hence he was 9 days 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 9 days may not be considered as significant or substantial, for which he asserted at the hearing of his summons that he received the decision late and only on the day before the issue of his summons when 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 of 24 May 2023 to the Applicant’s last reported address which is the same as stated in his present application without being returned through undelivered post, and in the absence of any evidence such as the envelope which contained the decision to show the actual postmark of its delivery to corroborate his bare assertion, I am not satisfied that the Applicant has provided a good or valid reason for his delay, but given its relative insignificance, I propose to focus on the prospect of his intended appeal.

6.However, the Applicant 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 stated that he has a good ground of appeal but without stating what it is, nor was he able to do so at the hearing of his summons other than just repeating his claim as before of fear of being harmed or killed by his creditor over his unpaid debts if refouled to his home country. 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.