RE BUI MANH CUONG

HCAL 22/2021

[2022] HKCFI 189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 22 OF 2021 

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D E C I S I O N

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1.  On 23 June 2021 I refused to extend time to the seriously late application of the Applicant for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his appeal/petition regarding his non-refoulement claim upon finding that there was no good reason for his serious delay of more than 2 years, 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 of Immigration (“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 5 August 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 7 July 2021, and hence he was some 4 weeks 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 4 weeks must be considered as very substantial or inordinate, for which he explained in both his affirmation and at the hearing of his summons that at that time he had moved to a new address without informing the court of the same, and when he was told by his former co-tenant in his previous address of the receipt of the decision at that address, but by the time he was able to retrieve the decision and to find someone to help him to prepare the application for his intended appeal, he was already out of time.

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address, and as it was his duty to inform the court of his new address as soon as practicable but which he failed to do so, and hence he had only himself to blame for the delay so caused. As such I am not satisfied that the Applicant has any good reason for his serious delay.

6.  More importantly, the Applicant has failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or in his affirmation in which he complained that the court reached the decision unfairly without allowing him an opportunity to clarify his case and the situation in his country, when the fact is that he never requested any oral hearing for his leave application, and at the hearing of his summons he could only repeat his claim as before of fear of harm from his creditor over his unpaid debts, of which as pointed out in the decision that both the Director and the Board had correctly found to be a private monetary dispute without any official involvement that any risk arising therefrom would be negated and avoided by state/police protection and internal relocation upon the Applicant’s return to his home country that there could simply be no justification to afford him with non-refoulement protection. 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, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.