RE TU VAN MINH

HCAL 40/2022

[2022] HKCFI 3295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 40 OF 2022

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D E C I S I O N

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1.  On 15 February 2022 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal/petition regarding his non-refoulement claim upon finding that none of his proposed grounds were 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 30 June 2022 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 the High Court, Cap 4A ended on 1 March 2022, and hence he was almost 4 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, 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 almost 4 months must be considered as very substantial and inordinate, for which he stated in his supporting affirmation as follows:

“I am the Applicant herein. The decision made by the Deputy High Court judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the Court regarding the Judicial Review be refused. I humbly request the Court to allow my appeal out of time and give a chance to explain.”

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and while I accept that the Applicant being unrepresented might require help with his legal process, but ignorance of the procedural rules can never be accepted as an excuse or reason for their non-compliance, and as the Applicant also failed to attend the hearing of his summons without any explanation, I am not satisfied that he has provided a good or valid reason for his serious delay.

6.  More significantly, nor did the Applicant 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, while for his complaint in his affirmation that the decision was reached wrongly as he was not given any opportunity to clarify his case or the situation in his home country, of which I take it to mean that no oral hearing was provided for his leave application, the fact is that he had never requested for any, and as noted above he also failed to attend the hearing of his summons without explanation. 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.