RE NGUYEN MANH TAI

HCAL 1144/2018

[2021] HKCFI 3262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  1144 OF 2018

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D E C I S I O N

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The application

1.  The Applicant, by summons dated 30 September 2021, applies for extension of time to appeal against the decision of Deputy High Court Judge C. P. Pang (“the Court”)  given on 28 January 2021 refusing to grant leave to the Applicant for judicial review of the decision of the Torture Claims Appeal Board in dismissing his appeal from the decision of the Director of Immigration regarding his non-refoulement claim.

2.  The 14 day period for the Applicant to file his appeal against the decision of the Court ended on 11 February 2021 and hence he was over seven and a half months late with his intended appeal.

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, a 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 extension of time were granted.

4.  In the Applicant’s case, the delay of over seven and a half months is a significant delay.  In his affirmation in support, the Applicant states that the reason for the delay was due to the fact that he did not receive any judgment from the court.

5.  The court record shows that the decision of the Court was sent on the same day that decision was made to the last reported address of the Applicant without it being returned to the court as undelivered post.  It is to be noted that in his present summons, the Applicant has given a different address.  If there has been a change of address and the Applicant has failed to notify the court of such change, then that is a matter which the Applicant has only himself to blame.

6.  As for the prospect of the intended appeal, the Applicant has not put forward any proper or valid draft or proposed grounds of appeal.  Neither has the Applicant alluded to any particulars of any error of law in the decision of the Court or why it can be said that the decision of the Court was unfair or unreasonable.

7.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

8.  This being an application to extend time to appeal against the decision of the Court, it is for the Applicant to show that there is a reasonably arguable appeal.  This he has not done.

9.  In the premises, it would be futile to extend time for what would appear to be a hopeless appeal.  Accordingly, I refuse the Applicant’s application for extension of time to appeal against the decision of the Court and dismiss the summons.