Pham Ba Huy v. Torture Claims Appeal Board

HCAL 2084/2023

[2024] HKCFI 1220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2084 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 16 February 2024 I refused to extend time to the seriously late application of the Applicant for leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding no good reason for his very serious delay of almost 9 months late with his application, 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 merits or reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 22 March 2024 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file his appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap. 4A expired on 1 March 2024, and hence he was some 3 weeks 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 3 weeks must be considered as substantial and inordinate, for which he failed to provide any explanation in his summons or supporting affirmation, nor did he subsequently attend the scheduled hearing of his summons without any explanation.

5.The court record shows that the decision was sent on the same day of 16 February 2024 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any explanation from the Applicant, I am unable to see any good or valid reason for his such serious 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 in his affirmation other than just a regurgitation of his claim as before that it would still be dangerous for him to return to Vietnam, and as noted above that he also failed to attend the scheduled hearing of his summons without explanation. 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 was unrepresented and did not appear