NGUYEN VAN THUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1195/2024

[2025] HKCFI 235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1195 OF 2024

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 5 December 2024 (the “Summons”)for extension of time to appeal the order of this Court dated 10 October 2024 (the “Order”)  refusing him leave to apply for judicial review (the “leave application”)  of the decision of the Director of Immigration (the “Director”)  dated 10 August 2023 refusing his application for non-refoulement protection.

2.  The application is one month and eleven days out of time.  Evening allowing for the inconvenience of being in custody, the delay is very substantial in the context of a fourteen-day period of appeal.  In his supporting affirmation, the Applicant asserted that it was not his fault as he was only served a copy of the Order and Form CALL-1 on 19 November 2024. The Court noted that he had changed his place of detention during the course of these proceedings.  He was detained in Castle Peak Bay Immigration Centre (“CIC”)  during the oral hearing.  He is now detained in Tai Tam Gap Correctional Institution (“Tai Tam Gap”)  when applying for extension of time to appeal.  If what he said is true, most probably it was because he has not informed this Court when he changed his place of detention.   On that basis, this Court was prepared to grant him indulgence, if he could at least explain a substantial part of the delay and advance some arguable grounds of his intended appeal.  Directions were therefore given for him to file an affirmation or statement within 14 days of the date of the directions stating the grounds of his intended appeal and exhibiting a copy of the relevant page of the Prisoner’s Incoming Mail Register from Tai Tam Gap, which to the Court’s knowledge is accessible to the inmates.  More than fourteen days have lapsed. As at the date of this decision, he has not complied with the directions.

Legal principles applicable to application for extension of time to appeal

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision.  Thus, by 5 December 2024 when the Summons was filed, his application was one month and eleven days out of time.  Leave to appeal out of time is required. 

4.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1)  the length of the delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if extension of time was granted.  Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time.  The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.  

The delay and explanation for the delay

5.  The Applicant attended the oral hearing on 30 September 2024 while he was detained in CIC.  The Court made a prompt decision within ten days and issued him the Order and Form CALL-1 by sending the documents to him at CIC on 10 October 2024.  Hence, when the Order and Form CALL-1 were delivered to the Applicant care of CIC, they were returned and marked removed.  After ascertaining his new place of detention, the documents were resent to him under a covering letter dated 13 November 2024, which, the Applicant says were received by him on 19 November 2024. 

6.  As the later enquiries revealed, the Correctional Services Department (“CSD”)  removed the Applicant from Immigration detention to prison detention in Tai Tam Gap Correctional Institution on 2 October 2024.  CSD has no obligation to inform this Court where it keeps its inmates.  Immigration Department also has no obligation to inform this Court of the change of address of its inmates.  These two Departments are not even parties to the leave application.  On the other hand, as was held by the Court of Appeal in Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], it is the applicant’s obligation to keep the court informed of his means of contact.  If he does not, he has to bear the consequence which his failure brings.  The Applicant cannot claim he was not responsible for the late delivery as primarily it is his duty to update the Court with his change of address. Even accepting everything that he said on its face value, and that time started to run from the date when actually received a copy of the Order and Form CALL-1 on 19 November 2024 (which is not accepted), he still has to explain why it took him sixteen days to lodge his appeal.  He was at least two days’ late.

7.  In addition, the Applicant has also not advanced any grounds of appeal.  Despite the Court’s readiness to indulge, without his complying with the directions, the Court could not assess the credibility of his explanation for the delay and if his proposed appeal has any prospect of success.  The directions were sent to him by post to the correct address and has not been returned in the course of mail.  There is nothing to suggest he has not received the directions.  The Court could only assume he deliberately chose not to comply with the directions because he has no reasonable explanation to offer for the delay and has no arguable grounds of appeal.  His failure to response also evinces a lack of will to prosecute his proposed appeal.  In view of the conclusions reached above, there is no need to consider the issue of prejudice to the respondent if extension of time is granted. 

8.  For the above reasons, his application for extension of time to appeal is refused.