Vu Van Sang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1935/2019

[2024] HKCFI 3441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1935 OF 2019

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D E C I S I O N

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Introduction

1.This is the Applicant’s application by summons filed on 28 October 2024 seeking extension of time to appeal the order of this Court dated 27 September 2024 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”) of the decision (the Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”).  

Legal principles applicable to application for extension of time to appeal

2.Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision.  Thus, by 28 October 2024 when the summons was filed, this application was seventeen days out of time. 

3.In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted.  Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time.  The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Discussion

4.The application is seventeen days out of time, which is substantial in the context of a 14-day period of appeal.  In his supporting affirmation, he claimed he had not received the Order and hence he was unable to appeal in a timely manner.  He did not advance any grounds of his intended appeal.  To assist him to present a proper application for extension of time to appeal, directions were given to him to file an affirmation or a statement within 14 days of the directions setting out his explanation for the delay in applying for appeal and the grounds of his intended appeal.  He was also advised that his application for extension of time will be determined on paper after 21 days from the date of the directions, regardless whether those directions have been complied with or not.  As at the date of this decision, more than 35 days have lapsed, he has not complied with the directions.

5.The Applicant has not provided any grounds of his intended appeal. The Court understands the Applicant’s explanation for the delay is that he never received the Order.  But that does not explain how and when he first came to be informed of the outcome of his leave application to enable this Court to assess the reasonableness of his explanation.  He has failed to give a reasonable explanation for the delay, which is substantial.

6.The only complaint he advanced in his supporting affirmation which might be taken as a ground of his intended appeal is that the Court’s decision was reached unfairly as he “was not given an opportunity to clarify [his case] and situation in [his] country” and that he was acting in person.  A litigant in person without more is not a valid ground of appeal.  The particulars of the unfairness he gave is against this Court in refusing his leave application and not against the Board in dismissing his appeal against the decision of the Director of Immigration refusing his non-refoulement claim.  However, the unfairness he allegedly occasioned is that he “was not given an opportunity to clarify [his] case and situation in [his] country” (“COI”).

7.The decision of this Court refusing his leave application was made on paper without an oral hearing.  As stated in paragraph 2 of the Form CALL-1, the Applicant did not request an oral hearing, and having considered the nature of the application and issues raised, the Decision of the Board, the papers and all the circumstances, this Court considered his application may be justly determined on paper without an oral hearing.  In the circumstances, the Applicant cannot have any valid complaint for the Court determining his application without holding an oral hearing or not giving him the opportunity to clarify his case and the COI.

8.Furthermore, the unfairness he complained of is that he was not given opportunity to clarify his case and the conditions in his country (the “COI”) before this Court.  He is not complaining that the Board denied him of such opportunity.  As explained in paragraph 19 of the Form CALL-1, the function of the court in a judicial review is not to re-asses the non-refoulement claim afresh.  This Court has no power to make finding of facts relating to his non-refoulement claim.  Only the Board may make such finding of facts.  What this Court may do is to intervene for errors of law, procedural unfairness and irrationality in the Board’s Decision or the making of the Decision.  This Court is bound by the evidence and finding of fact by the Board.  Even if an oral hearing was held and the Applicant was given the opportunity to make clarifications about his case and the COI, the Court could not reassess his claim afresh as if it were the Board.  The most this Court could do would be to test the Board’s Decision against his clarifications and submissions to assess if he has made out an arguable ground that the Board had erred in law or committed some procedural unfairness or that the Decision is irrational.

9.However, as noted in paragraph 20 of the Form CALL-1, the Applicant had not put forward any specific grounds of review.  The basis of his leave application was that he disagreed with the finding of the Board. That effectively is a challenge of the Board’s finding of fact which is not permissible in an application for judicial review.  He had made no complaint about the Board denying him the opportunity to make submissions and clarifications in the appeal before the Board.  He had also made no complaint about the Board for failing to consider any relevant COI or taking into account any irrelevant COI.  Indeed, the Board’s Decision was not made on the basis of any COI at all, but on its finding that the Applicant was incredible and had failed to establish the factual basis in support of his claim for protection.  Had the Applicant made the slightest suggestion in his Form 86 or supporting affirmation that the Board had refused him the opportunity to make clarifications or submissions or had failed to take into or had wrongly taken into account any specific COI, this Court would have requested him for particulars or called for an oral hearing to explore the question of errors of law, procedural unfairness or irrationality in the Board’s Decision.  This is not the case.  The Applicant has not advanced any valid grounds of appeal.  Even if his complaint in his supporting affirmation is treated as a ground of appeal, for reasons as already discussed, an appeal based on that ground is hardly arguable.  His intended appeal has no prospect of success.  

Conclusion

10.The Applicant has no explanation for the substantial delay in taking out the appeal.  He has not advanced any ground of appeal with prospect of success. For these reasons, extension of time to appeal is refused.

The applicant is not represented