TRAN VAN CANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2548/2024

[2025] HKCFI 3249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2548 OF 2024

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 9 July 2025 (the “Summons”) seeking extension of time to appeal this Court’s order allowing his application to withdraw his application for leave to apply for judicial review (the “leave application”) of the decision the Torture Claims Appeal Board / Non-refoulement Petition Office (the “Board”) dated 3 December 2024 (the “Decision”).  By that Decision, the Board dismissed his appeal against the decision of the Director of Immigration refusing his application for non-refoulement protection.  

2.  The procedural background leading to his Summons is as follows. The Applicant had filed his leave application on 19 December 2024, but withdrew it by letter dated 20 May 2025 (the “withdrawal application”), claiming that it is now safe for him to return to his country, that he wishes to return as soon as possible, that he withdrew his leave application on his own free will and that he understands the consequences of his withdrawal, including that the Decision he sought to judicially review shall remain in force.  Being satisfied that what he asserted is true and that his decision to withdraw his leave application is a valid one, this Court granted him leave to withdraw.   The Form CALL-1 and sealed Order were issued to him on 12 June 2025.

3.  On 9 July 2025, ie about four weeks later, the Applicant filed the present Summons seeking leave to appeal the Order out of time.  The grounds of his appeal as well as the reason for the delay in making the application is that he thought he would be able to arrange his problems in Vietnam but things did not turn out as he thought. 

The law

4.  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.  The Applicant is twelve days out of time.  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.

The delay

5.  The delay of twelve days in an appeal period of fourteen days is not very substantial.  The Applicant’s explanation for the delay as stated in his Summons and supporting affirmation is that he thought he would be able to arrange his problems in Vietnam but things did not turn out as he thought.  There is no allegation that the delay was occasioned because he never received the Court’s Order or that the Order was delivered to him late.  He is in effect saying that he later realized he had under-estimated the consequence of the withdrawal.  The under-estimation was an act of his own which could hardly be a reasonable explanation for the delay.  Be that as it may, as the delay is not very substantial, this Court is prepared to condone the delay, if his intended appeal has prospect of success.

Prospect of success of the intended appeal

6.  The Court had carefully considered the law and the material facts when allowing his withdrawal application. His intention as expressed in his withdrawal application is unequivocal. He wishes to return to his home country as soon as possible because his problem was solved and it is now safe for him to return.  Apart from that, he said he understood the consequence of his withdrawal.  Thus, it is clear that his decision to withdrawal is an informed decision.  He also confirmed that he withdrew his leave application out of his own free will.  His decision to withdraw is therefore a voluntary decision consciously or deliberately made.  He must have acted on all reliable information available to him at the time he made the decision to withdraw.  There is nothing to suggest there was any misunderstanding of any fact which led to his decision to withdraw.  There is nothing to suggest that his mind did not accompany his withdrawal application or that he has no mental capacity to make that application.  The Court was therefore satisfied that his decision to withdraw is an informed and conscious or deliberate decision.  It is a valid decision: see Ali Usman[2] and HT (Hussain Tasawar) v Betty Kwan[3].  Hence, the Court allowed his application to withdraw. 

7.  His grounds of appeal as advanced in his supporting affirmation is basically the same as his explanation for the delay, ie that he thought he would be able to arrange his problems in Vietnam but things did not turn out as he thought.  This could hardly be an arguable ground.  It is all about his misapprehension of his situation in Vietnam.  He had confirmed it is safe for him to return to Vietnam and that he understands the consequences of his withdrawal.  But, now he thinks he had under-estimated his situation in Vietnam.  He has not alleged any error whether of law or of fact in the Court’s decision allowing his withdrawal application.   

8.  In his Summons and supporting affirmation, the Applicant said that things did not turn out as he expected.  But he had not actually returned to Vietnam and found that things did not turn out as he expected.  He had not given any evidence that why it is dangerous for him to return.  He gave no explanation what went wrong when he made his withdrawal application.  He just made a bald assertion that it is now dangerous for him to return.  He made no allegation about being misled by his family or anybody or that he misunderstood the situation or that he was suffering a mental condition or acting under other vitiating circumstances at the time he applied to withdraw his leave application.  These two documents indirectly supported the inference that his decision to withdraw was an informed decision voluntarily, deliberately or consciously made.  His intended appeal has no prospect of success. 

Conclusion

9.  Accordingly, the Applicant’s application for extension of time to appeal is refused.