Le Ngoc Diep v. Director of Immigration

HCAL 367/2020

[2026] HKCFI 2916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 367 OF 2020

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D E C I S I O N

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1.On 4 September 2023 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Director of Immigration (“Director”) in refusing his request to make a subsequent claim for non-refoulement protection upon finding that the factual basis thereof was essentially the same as his previous unsuccessful non-refoulement claim as found in the decision, that he had failed to satisfy the immigration officer that there had been any significant change of circumstances since the final determination of his previous claim or that such change when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success, that none of the grounds put forward by him reasonably arguable for his intended challenge of the Director’s decision, that there was no error of law or procedural unfairness in the Director’s decision to refuse his request, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 10 June 2025 (but somehow was only recently brought to the court’s attention) seeks leave to appeal against the Court’s 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 18 September 2023, and hence he was more than 1 year and 8 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 more than 1 year and 8 months must be considered as extremely substantial and inordinate, for which he explained in his affirmation that at one time he thought it would be safe for him to return to his home country, but later it turned out that his life would still be in danger in Vietnam, and so he changed his mind and decided to 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 4 September 2023 to the Applicant’s then reported address but was subsequently returned marked unclaimed, and upon subsequent confirmation by the Immigration Department that it was the same and correct latest address provided by the Applicant, and as it was his duty to update his latest address with the relevant authorities as soon as possible of such change, if any, of his residential or corresponding address, while a change of mind of one’s intention to appeal can never be accepted as a justification for the delay so caused, I am not satisfied that the Applicant has provided a good or valid reason for his such serious delay.

6.More importantly, the Applicant has 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. 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 leave to appeal out of time, and dismiss his summons.

The Applicant was unrepresented