Do Van Quang v. Director of Immigration

HCAL 2277/2019

[2025] HKCFI 1495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2277 OF 2019

_____________

BETWEEN

_____________

_____________

D E C I S I O N

_____________

1.On 28 January 2025, the Court sent by ordinary post to the applicant’s updated address the order (“Order”) together with the decision of this court in the prescribed Form CALL-1 ([2025] HKCFI 512) (“Decision”) , dismissing his application for leave to apply for judicial review against the Director of Immigration’s decision dated 23 November 2017. Unless otherwise specified, this court will adopt the abbreviations used in the Decision.

2.Pursuant to O 53 r 3(4) of the Rules of the High Court, the time limit for an appeal to the Court of Appeal is 14 days (from the date the order of the court is made). The deadline for the applicant to file his appeal would have been 11 February 2025. After a delay of 7 days, the applicant issued a summons dated 18 February 2025 to apply for an extension of time to appeal to the Court of Appeal against the Order.

3.At the hearing of the summons, the applicant appeared in person and made submissions.

The law

4.The guidelines governing the discretion for an extension of time to appeal against a decision refusing leave to apply for judicial review therefore apply. A 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; Re Saqlain Muhammad [2018] HKCA 346; and Nguyen Thi Hong Thuy [2024] HKCA 1172.

The Applicant’s explanation for the delay

5.In his affirmation in support of the summons, the applicant stated that he:

“did not receive any letter from the Court. It was not until I was reminded by Immigration Department that my judicial review application was refused and that I had missed the appeal period that I learned of my situation. Therefore, I had to quickly file this application to request the Court to extend the time for me to appeal”.

6.At the hearing, the applicant gave this court a quite confusing and rather different account to that which he had deposed. He said he was not sure when he had in fact received the Order and the Decision. He said it might have been 18 or 19 February 2025. He said after having received the documents, he went to see a friend to ask for help. However, he did not immediately file the summons until several days later as he wanted to find another friend to prepare and file the documents for him at the High Court. However, despite having gone to two friends for help, the applicant stated that he had yet to understand the reasons for the Decision, as he had not asked his friends to explain the contents of the Decision. When this court asked him why he wanted to challenge the Decision if he did not even know the reasons given for the Decision, the applicant said that he wanted to appeal in order that he would be allowed more time to stay in Hong Kong.

7.As the applicant had stated that he did not know anything about the reasons for the Decision, I granted a short adjournment to the applicant so that the interpreter could interpret the Decision to the applicant. After the hearing was resumed, the applicant confirmed that he understood my Decision. Instead of stating the grounds for the intended challenge to the Decision, the applicant told the court that after the hearing of the Leave Application, he had in fact submitted an application to “Wanchai” (the Board) to ask for a re-hearing of his non-refoulement case. A hearing was fixed to take place on 24 April 2025.

Discussion

8.In considering the length of the delay, I give prominence to the fact that the Order and the Decision were issued and posted on the eve of the Chinese New Year holiday from 29 January 2025 to 31 January 2025 (a Friday) , which was immediately followed by the weekend. In other words, due to the Chinese New Year statutory holidays and the intervening weekend, the applicant had been deprived of half of the 14-day statutory appeal period. I therefore consider this factor in favour of the applicant, and do not find that the length of delay is substantial.

9.As for the reason for the delay, I am not satisfied that the applicant’s explanation is credible. As outlined above, the applicant has provided two very different versions of the explanation in his supporting affirmation and at the hearing. Contrary to his assertion in his supporting affirmation that he had not received the court’s documents, the applicant has now confirmed at the hearing that he had received them. It is however unclear, according to his explanation given to court, whether the time limit for appeal had already expired when the applicant had received the Order and the Decision. He only vaguely indicated that he might have received them around 18 or 19 February 2025. The filing date of the summons (17 February 2025) clearly shows that the applicant’s estimated receipt date of 18 or 19 February 2025 cannot be correct. This is because according to the applicant, he did not immediately file this summons until several days later when he could get a friend’s assistance to file the papers with the court. Hence, I believe that it is likely that when the applicant received the Order and the Decision, the time limit for the appeal had probably not yet expired.

10.In my view, the applicant had clearly failed to take prompt action. Whilst the applicant had immediately gone to seek assistance from a friend, he did not seem to be at all interested in finding out the reasons for the Decision at any stage. He filed the summons without even having knowledge as to the reasons for the dismissal of the Leave Application. Most disconcertingly, I believe that the intended appeal is not a bona fide challenge to the Decision. As the applicant stated at the hearing, the applicant’s real purpose of the appeal was to play for time.

11.As for the prospects of success, I am not satisfied that the intended appeal has any merits. As stated above, the intended appeal has nothing to do with any alleged error in the Decision. As I have stated in the Decision (§§9-12), the applicant’s failure to file an appeal to the Board against the Director’s Decision constitutes a procedural irregularity. I am therefore not satisfied that there are good prospects of success for the applicant’s intended appeal.

12.The present case is not like the case of Re Rana Jaswant [2019] 2 HKLRD 347 (CA) where a court had overlooked the running of time during vacation; or where a court had sent to an applicant the documents of another non-refoulement claim as in Re Nguyen Thi Le Huong [2022] HKCA 604 . Rather, I find that the applicant has deliberately abused the process of the court. Whether to extend time to appeal is within the discretion of the court. Having carefully examined the facts and evidence of this case, I am disinclined to exercise my discretion to extend the time for the applicant to serve his notice of appeal. The summons is therefore dismissed.

The applicant, appeared in person