RE NGUYEN VAN DAT

HCAL 1147/2018

[2021] HKCFI 687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1147 OF 2018

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D E C I S I O N

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1.  On 11 August 2020 I refused to extend time to the applicant’s late application for leave to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding no good reason for his significant delay, 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 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 28 October 2020 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 expired on 25 August 2020, and hence he was late by more than 2 months 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 2 months must be considered as substantial or excessive, for which he explained in his supporting affirmation that as he was unrepresented and could not read English or Chinese, he needed help from someone to explain the decision to him and to help him to prepare the documents for his appeal which caused the delay.

5.  While I accept that the applicant being unrepresented may need help with his intended appeal, the court record shows that the decision was sent on the same day to his last reported address as the same stated in his present application, and in the absence of any further details or corroborating evidence that he indeed required as much as more than 2 months to do so, for which he also failed to attend the hearing of his summons to offer any explanation, I am not satisfied that he has provided any good 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 affirmation, and as noted 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.