RE BUI MINH HAI

HCAL 435/2018

[2021] HKCFI 1141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 435 OF 2018

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D E C I S I O N

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1.  On 2 July 2020 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“Director”) or the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding 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 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 4 January 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 16 July 2020, and hence he was more than 5 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 5 ½ months must be considered as very substantial and excessive, for which he explained in his supporting affirmation that as he has no knowledge of English and did not have the financial means to obtain legal advice regarding the appeal procedure, and by the time he was able to obtain legal assistance, he was already out of time with his appeal.

5.  The court record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and in the absence of further details or documentary evidence to corroborate his bare assertions, I am not satisfied that the applicant has provided a good or valid reason for his serious delay.

6.  More importantly, nor did 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 argued that the decision was unfair or unreasonable either in his summons or in his affirmation in which he claimed to have a good ground of appeal but without providing any further particulars or elaboration of what it is, while he also failed to attend the hearing of his summons without any explanation. 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, 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.