Nguyen Truong Giang v. Torture Claims Appeal Board

HCAL 1059/2023

[2025] HKCFI 5698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1059 OF 2023

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D E C I S I O N

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1.On 20 May 2025, I refused to grant leave to the Applicant 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 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 reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 13 August 2025 seeks leave to appeal against that decision out of time, 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 3 June 2025, and hence he was more than 2 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

4.Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

5.In the Applicant’s case, a delay of more than 2 months must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that first he never received the decision in the mail but could not remember how he subsequently found out about the decision which he now wants to appeal, and then he changed his explanation that he only received it on 13 August 2025 when by then he was already out of time to appeal.

6.The court record shows that the decision was sent on the same day of 20 May 2025 to his then reported address which is the same as stated in his present application and without being returned through undelivered post, and in the absence of any credible and convincing evidence from the Applicant, I am not satisfied that he has provided any good or valid reason for his such serious delay.

7.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, 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.

8.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 to grant leave to the Applicant to appeal out of time, and dismiss his summons.

The Applicant appeared in person