Vu Quang Huy v. Torture Claims Appeal Board

HCAL 639/2023

[2023] HKCFI 2265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 639 OF 2023

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BETWEEN

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D E C I S I O N

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1.On 3 July 2023 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 non-refoulement claim upon finding that there was no good reason for his significant delay, that none of the grounds put forward by him 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 reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 3 August 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 High Court, Cap 4A ended on 17 July 2023, and hence he was some 17 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 the intended appeal; and (iv) the prejudice to the respondent if 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 17 days must be considered as substantial and inordinate, for which he explained at the hearing of his summons that he cannot read English and had had to seek help from his friends with his application, 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 of 3 July 2023 to the Applicant’s last detention at Castle Peak Bay Immigration Centre (“CIC”) but was subsequently returned undelivered as the Applicant had by then been released, and upon further enquiry with the Immigration Department that the decision was re-sent on 13 July 2023 to the Applicant’s then reported residential address without being returned through undelivered post, and even putting aside his duty to inform the Court of his new address immediately upon his release from CIC but which he never did, the fact is that the Applicant would still be some 7 days late with his application, but given the relative insignificant delay, I propose to focus on the prospect of success 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 repeated his claim of fear of being killed by his creditor if refouled to his home country, and which he could only repeat at the hearing of his summons without putting forth any proper ground for his intended appeal. 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. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.

The Applicant appeared in person.