Bui Van Thang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3564/2019

[2025] HKCFI 4547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3564 OF 2019

____________

____________

______________

D E C I S I O N

______________

1.By summons (“the Summons”) filed on 5 June 2025, the Applicant seeks an extension of time to appeal this Court’s decision dated 28 April 2025 (“the Decision”) dismissing his application for leave to apply for judicial review of the Torture Claims Appeal Board / Non-refoulement Petition Office’s decision dated 3 July 2019, which confirmed the Director of Immigration’s decision dated 1 September 2016 rejecting his non-refoulement claim on grounds under the Unified Screening Mechanism (USM).

2.Under Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The Applicant was therefore late by 24 days. In considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (i) the length of the delay; (ii) the reasons for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted (see Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office CAMP 64/2020 [2020] HKCA 844 at §10).

3.The delay in question is close to one month and can hardly be described as insubstantial. The Applicant asserts that he did not receive the Decision and was therefore unaware that his application for leave to apply for judicial review had been dismissed. He claims that it was only upon being reminded by the Immigration Department, both of the Decision and the need to file an appeal, that he began checking the status of his application.

4.It appears that the Form CALL-1 was sent to a different address from the one used in the Notice of the present hearing. However, even if the Applicant’s assertion that he did not receive the Decision is accepted, it does not absolve him of responsibility. The onus remains on the Applicant to ensure that his correspondence address is kept up to date, and in this case, no explanation is provided in his affirmation as to what steps, if any, have been taken in that regard. Moreover, the Applicant has failed to clearly identify the date on which he was informed by the Immigration Department about the Decision, nor has he clarified whether there was any time lapse between that date and the issuance of the Summons. If such a lapse did occur, he has not provided any explanation or justification for the delay.

5.In any event, the most important consideration lies in the merits of the proposed appeal (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). The Applicant has shown a consistent pattern of delay in the conduct of these proceedings. In the Decision, I refused to extend time for the Applicant to apply for leave to commence judicial review proceedings. Section 21K(6) of the High Court Ordinance (Cap. 4) empowers the Court to refuse to grant leave for judicial review if it considers that there has been undue delay in making the application. I exercised that discretion after reminding myself of the relevant legal principles laid down in the authorities. In doing so, I took into account, among other considerations, that the Applicant did not apply for any extension of time, nor did he offer any explanation for the delay. In any event, I was not satisfied that the Applicant’s intended challenge to the Board’s Decision was reasonably arguable with any reasonable prospect of success. In other words, I would have dismissed the leave application even if time had been extended.

6.The Applicant has not advanced any valid or arguable grounds of appeal against the Decision. There is absolutely no point, nor does it serve any useful purpose, in allowing the Applicant to pursue a challenge that is bound to fail. He was unable to identify any error of law, procedural unfairness, or any failure on the Board’s part to apply the requisite high standard of fairness in its consideration of his non-refoulement claim. No specific grounds in support of the intended judicial review were identified at all. On the contrary, it was only after a thorough review of all the evidence adduced by the Applicant, and upon applying the relevant legal principles to the issues and grounds raised, that the Board concluded that he had failed to establish his claims of Torture Risk, BOR 2 Risk, BOR 3 Risk, and Persecution Risk. The assessment of COI information, risks of harm, state protection, and the viability of internal relocation were clearly matters within the province of the Board. It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal.

7.I am therefore not satisfied that an extension of time should be granted to the Applicant to appeal the Decision. To do so would only result in further delay, which is detrimental to the proper administration of the refoulement process.

8.Accordingly, I refuse to allow the Applicant to appeal out of time and dismiss the Summons.

The applicant appeared in person