RE NGUYEN QUOC ANH

HCAL 1682/2019

[2021] HKCFI 1853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1682 OF 2019

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D E C I S I O N

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1.  On 26 August 2020 I dismissed the applicant’s application for leave 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 his written request to withdraw his application on the basis of his confirmation that the stated basis of his claim had been resolved in that his family in Vietnam had repaid his debt on his behalf and hence it would be safe for him to return to his home country without any risk of any harm from his creditor.

2.  The applicant now by a summons issued on 25 March 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 High Court, Cap 4A ended on 9 September 2020, and hence he was more than 6 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 6 months must be considered as very substantial and excessive, for which he explained at the hearing of his summons that as he does not read or write English and was unable to find anyone to explain the decision to him or to help him to prepare the documents for his appeal until his subsequent detention at the Castle Peak Bay Immigration Centre (“CIC”) where he was eventually able to get assistance from the welfare officer and to instruct a lawyer to prepare the documents for his appeal, but by then he was already way out of time with his intended appeal.

5.  The court record shows that the decision was sent on the same day to his then reported address without being returned through undelivered post, while his explanation of not knowing how to go about making his appeal or not able to find help with his appeal cannot be accepted as an excuse for failing to file his appeal within the period required under the rule. As such I am not satisfied that the applicant has provided any good reason for his such serious delay.

6.  As for the prospect of his intended appeal, the applicant in his supporting affirmation prepared by his lawyer stated as follows:

“I am the applicant herein. I am presently detained by the ImmD authorities. Leave be granted to me to appeal against the decision of Deputy High Court Judge Bruno Chan dated the 26^th August 2020 on the grounds of that the court of First Instance has failed to arrange an oral hearing in which I would have been given a fair, just and reasonable opportunity to make oral submissions in which I wish to draw court’s attention that I still face danger to my life in my country of origin. The court of first instance has ceased jurisdiction upon issuance of Judgment and it is reasonable for me to seek relief through court of appeal that the matter be remitted to court of first instance.”

7.  At the hearing of his summons the applicant further clarified that his problem with his creditor over his debt has turned out to be unresolved and that the risk of him being harmed or killed by his creditor upon his return to Vietnam still exists, and hence he cannot return to his home country and he therefore wants to proceed with his application for judicial review.

8.  As noted above, the decision to dismiss the applicant’s leave application was made at his request and upon his own confirmation that his claimed problem in his home country which formed the basis of his non-refoulement claim had been resolved, which therefore rendered it unnecessary to hold any oral hearing for his request or for his application for which he had never requested any in the first place. In the circumstances his grounds or complaints stated above are therefore not reasonably arguable, 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. 

9.  If in indeed his alleged problem in his home country has recurred or has in fact not been resolved after all, whatever relief he may be able to resort to under the provisions of the Immigration Ordinance, certainly it would not be by way of an appeal against that decision in the circumstances.

10.  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 extension of time to appeal, and dismiss his summons.