TRAN TRONG DAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2066/2018

[2025] HKCFI 1871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2066 OF 2018

____________

BETWEEN

_____________

______________

D E C I S I O N

______________

Introduction

1.  This is the Applicants’ application by summons filed on 18 March 2025 for extension of time to appeal the order of this Court dated 12 January 2023 (the “Order”) refusing him leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”).

The Law

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. If the delay is not substantial, it would be readily condoned if there is some credible explanation and an arguable ground of appeal. If the first three factors are resolved against granting leave, there is no need to consider prejudice to the respondent.

Length of delay and explanations for the delay

3.  The application for leave to appeal is 25 months and 20 days out of time. The delay is very substantial. The Applicant’s explanation for the delay as stated in his supporting affirmation is that the Court’s Order and Form CALL-1 refusing his leave application were issued while he was serving a prison sentence. Hence, he never received them and did not know his leave application had been refused. He only learned about that after serving his prison sentence and when he was transferred to immigration detention in Castle Peak Immigration Centre. Due to lack of adequate information to support his explanation for the delay, an oral hearing was scheduled.

4.  At the hearing, the Applicant confirmed that he resided in Lai Chi Kok Road at the time he made the leave application. That was in September 2018 as shown in his Form 86. He moved to live with his mother in Jordan Road two years later. Then, he started serving his sentence on 20 March 2022. He did not inform the court or the Immigration Department of his change of address when he moved to live with his mother or when he was put in prison. As was held by the Court of Appeal in Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], it is the applicant’s obligation to keep the court informed of his means of contact. If he does not, he has to bear the consequence which his failure brings. In the circumstances, he has to bear the consequence which his failure brings.

5.  What happened then was as follows. On 15 October 2020, the Court sent him a letter by post to his address in Lai Chi Kok Road in connection with the conduct of his leave application. He did not respond. That was about the time when he moved to his mother’s address in Jordan Road. He may or may not have received that letter. Assuming that he had moved, the Court made enquiries with the Immigration Department for his up-to-date address. On 12 December 2022, the Immigration Department advised that his updated address was at Yu Chau Street. Hence, all subsequent correspondence, including the Order and Form CALL-1 were sent to his address at Yu Chau Street. Accordingly, he did not and could not have received the Order and Form CALL-1. The cause was his failure to inform the Court as well as the Immigration Department of his change of address. Had he informed either the Court or the Immigration Department on his regular reporting of his recognizance, nothing would have gone amiss. The Applicant has to bear the consequence of his neglect. He has no reasonable explanation for the very substantial delay.

Prospect of success of the intended appeal

6.  The Applicant has not advanced any ground of his intended appeal in his summons or supporting affirmation. The grounds he advanced at the hearing are: (1) that his problem in Vietnam is not solved; (2) that he hopes to stay in Hong Kong; and (3) that he asks to be released from immigration detention.

7.  Ground (1) is, in effect, a challenge of the finding of fact by the Board. His leave application was filed almost six months out of time. In refusing him extension of time to file the leave application, this Court had considered the merits of his intended leave application. In gist, the Applicant claimed that he would be harmed by his creditor if returned to Vietnam for being unable to repay his debt. The Board assessed his claim on the basis of the factual case as he asserted, but found as a matter of law and fact that he is not entitled to non-refoulement protection under any of the applicable grounds under the Unified Screening Mechanism. The Applicant disputed the Board’s finding, but advanced no specific grounds of application for judicial review. After having rigorously re-examined the Board’s decision with anxious scrutiny, this Court could not find any errors of law, procedural unfairness or irrationality and was satisfied that his leave application has no prospect of success. Hence, it refused extension of time for him to file the leave application. Grounds (2) and (3) are not arguable grounds of appeal. Hence, this Court finds his intended appeal has no prospect of success.

Conclusion

8.  The delay is so substantial that it is beyond the limits which any reasonable court could indulge. It also reflects a lack of intention to prosecute his appeal and the underlying lack of merits in his leave application and in the intended appeal. The Applicant’s intended appeal has no prospect of success. Accordingly, his application for extension of time to appeal is refused.