Dinh Van Tau v. Torture Claims Appeal Board

HCAL 847/2021

[2026] HKCFI 4581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 847 OF 2021

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BETWEEN

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D E C I S I O N

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1.On 6 July 2021 I refused to extend time to the late application of the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal regarding his non-refoulement claim upon finding no good reason for his serious delay of 6 weeks with the filing of his application, 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 1 June 2026 on seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of the High Court, Cap 4A ended on 20 July 2021, and hence he was some 4 years and 10 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 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 Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the Applicant’s case, a delay of some 4 years and 10 months must be considered as extremely substantial and inordinate, for which he explained in his affirmation that as he does not speak English or Chinese that he had had to seek help from his friends with his appeal which accounted for his delay.

5.The court record shows that the decision was first sent on the same day of 6 July 2021 to his then detention at the Castle Peak Bay Immigration Centre but was subsequently returned as the Applicant had earlier been released but without informing the Court of his new address, and upon subsequent inquiry made with the relevant authority that the decision was re-sent on 31 August 2021 to his newly reported address without being returned through undelivered post, in which case the Applicant would still have been late by more than 4 years with his intended appeal, and that his given explanations even if true cannot be accepted as any valid justification for his such serious delay.

6.More importantly, nor has he put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may be reasonably arguable that the decision was unfair or unreasonable either in his summons or his affirmation, 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 either.

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 the Applicant’s application for leave to appeal out of time, and dismiss his summons.

The Applicant was unrepresented