Nguyen Van Quyen v. Torture Claims Appeal Board

HCAL 1491/2022

[2024] HKCFI 3484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1491 OF 2022

_____________

BETWEEN

_____________

_____________

D E C I S I O N

_____________

1.On 2 July 2024 I refused to extend time to the 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 that there was no good reason for his serious delay of more than 6 months with his application, that none of the grounds put forward by him was 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 October 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 16 July 2024, and hence he was some 2 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 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 2 ½ months must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that he was then being detained at Tung Tau Correctional Institution (“Tung Tau”) until 27 July 2024 when he was transferred to Castle Peak Bay Immigration Centre (“CIC”), and that it was there that he was able to seek assistance with his appeal, but by then he was already out of time to do so.

5.The court record shows that the decision was sent on the same day of 2 July 2024 to the Applicant’s then detention at Tung Tau without being returned through undelivered post, and even if he may have been subsequently transferred to CIC as alleged, it could not be any valid excuse for his failure to file his appeal within the required period while at Tung Tau with assistance from the welfare officers stationed there. In the circumstances, I am not satisfied that the Applicant has provided a 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 in which he just repeated his claim as before, nor was he able to do so at the hearing of his summons. 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