RE PHAN THE CUONG

HCAL 684/2021

[2022] HKCFI 2097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 684 OF 2021

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D E C I S I O N

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1.  On 12 August 2021 I refused to extend time to the late application of the Applicant for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal/petition regarding his non-refoulement claim at his own request to withdraw the same upon finding that there was no good reason for his serious delay of more than 5 weeks with his application, that none of his proposed grounds were 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 15 December 2021 seeks extension of time to appeal against that decision, 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 26 August 2021, and hence he was more than 3 ½ 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 more than 3 ½ months must be considered as very substantial or inordinate, for which he first explained in his affirmation that he does not read English and needed help with his intended appeal, and that by the time he was able to get help from his friend, he was already out of time with his intended appeal.

5.  At the hearing of his summons the Applicant however gave a different explanation in that he suspects that the decision sent to his reported address by mail somehow fell off the mailbox on the ground floor of his residence and was lost that he never received it, and it was later when he reported on his recognizance to the Immigration Department that he was so informed by his immigration officer, but by then he was already out of time with his intended appeal.

6.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and whichever explanation that the Applicant relies on for his delay, and for which he has not provided any evidence to corroborate either of his bare assertions, I do not find either explanation as good or valid reason for his serious delay.

7.  As for the prospect of his intended appeal, the Applicant in his affirmation stated as follows:

“The Decision made by the High Court has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country.”

8.  I take that as the Applicant’s complaint of not being provided any oral hearing for his leave application for judicial review, the fact is that he never requested for one for his application in the first place, and that in any event it is entirely in the Court’s discretion whether to hold any oral hearing for such applications, and in the absence of any evidence from the Applicant that he had as a result been prejudiced or denied an opportunity to properly present his case, nor was he able to do so at the hearing of his summons when he could only repeat his claim as before that he still has problem with his creditor over his outstanding debts.

9.  In the premises, I do not find the Applicant to have 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 reasonably be argued that the decision was unfair or unreasonable either in his summons or in his affirmation or 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.

10.  In the circumstances, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.