RE NGUYEN VAN CUONG

HCAL 301/2018

[2022] HKCFI 2095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 301 OF 2018

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D E C I S I O N

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1.  On 11 August 2021 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 9 November 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 the High Court, Cap 4A ended on 25 August 2021, and hence he was some 11 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 11 weeks must be considered as substantial or inordinate, for which he explained both in his affirmation and at the hearing of his summons that he was then using his friend’s address for receiving his mails, but after the decision had arrived, his friend was too busy to inform him until early November 2021 when by then he was already out of time with his intended appeal.

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 as the Applicant had conceded that it was his friend’s fault for causing the delay, which obviously even if true cannot be accepted as a good or valid reason for such serious delay.

6.  As for the prospect of his intended appeal, the Applicant in his affirmation stated as follows:

“The Decision made by the High Court has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country.”

7.  To that I take it that the Applicant complained of not being given any oral hearing before the Court for his then leave application for judicial review, the fact is that he never requested for one in the first place, and as noted in the decision, the Court did at that time invite him to lodge his written submissions for his application, and which he did in writing and of which the Court did take into consideration in its decision (see [13] of the decision). As such and as it is entirely an exercise of the Court’s discretion as to whether an oral hearing should be held, and in the circumstances of the Applicant’s case, I do not find any merits in this complaint of his, or that it is reasonably arguable for his intended appeal.

8.  In the premises, and as I do not find the Applicant to have put forward 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 his affirmation, and at the hearing of his summons he could only repeat his claim as before that he still has problem in his home country that he cannot return. 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.

9.  Accordingly, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal, I therefore refuse his application for extension of time to appeal, and dismiss his summons.