RE TRAN VAN HUYEN AND ANOTHER

HCAL 1551/2018

[2021] HKCFI 3735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1551 OF 2018

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D E C I S I O N

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1.  On 8 June 2021 I refused to extend time to the late application of the Applicants, a married couple from Vietnam, for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing their appeal regarding their non-refoulement claim upon finding that there was no good reason for their serious delay, that none of the grounds put forward by them reasonably arguable for their 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 their intended application.

2.  The Applicants now by a summons issued on 7 July 2021 seek extension of time to appeal against that decision, as the 14-day period for them to file their appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 22 June 2021, and hence they were some 15 days late with their 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 Applicants’ case, a delay of 15 days cannot be regarded as insignificant, for which they did not provide any explanation in their summons or supporting affirmation, nor did they attend the hearing of their summons.

5.  The court record shows that the decision was sent on the same day to the Applicants’ last reported address without being returned through undelivered post, and in the absence of any explanation from the Applicants, I do not see any good reason for their delay.

6.  More importantly, the Applicants have 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 their summons or in their affirmation in which they merely repeated their claim as before of fear of being harmed or killed by the local gangsters for refusing to pay extortion money, and as noted above they also failed to attend the hearing of their summons without any explanation. As such and in the absence of any error in the decision being clearly and properly identified by the Applicants, I do not see any prospect of success in their 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 their application for extension of time to appeal, and dismiss their summons.