LE VAN NAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 652/2021

[2024] HKCFI 2440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 652 OF 2021

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D E C I S I O N

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1.  On 11 July 2024 I refused to extend time to the Applicant’s late application for leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding that there was no good reason or justification for his serious delay of more than 2½ years with his application, 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 (“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 8 August 2024 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file his appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap. 4A expired on 25 July 2024, and hence he was some 14 days 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 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 14 days may not be considered as insignificant or insubstantial, for which he explained at the hearing of his summons that he was without legal representation and has been in detention by the Immigration Department at the Tai Tam Gap Correctional Institution which accounted for the delay with his intended appeal.    

5.  The court record shows that the decision was sent on the same day of 11 July 2024 to the Applicant’s detention at Tai Tam Gap Correctional Institution without being returned through undelivered post, but given the Applicant’s situation and the relatively insignificant delay so caused by him being detained, I propose to focus on the prospect of success of his intended appeal.

6.  However, the Applicant 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 just exhibited pages of the relevant principles applicable to the determination of non-refoulement claims and repeated his own claim as before of fear of being harmed or killed by his creditor over his outstanding debts in Vietnam but without putting forth any proper ground for his intended appeal of the Court’s decision, nor was he able to do so at the hearing of his summons.  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 by the Applicant.  Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.