TRAN HUY PHUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 964/2022

[2023] HKCFI 1191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 964 OF 2022

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D E C I S I O N

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1.  On 11 November 2022 I refused to extend time for the late application of the Applicant for leave 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 there was no good reason for his serious delay of more than 5 months with his application, that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his 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 December 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 expired on 25 November 2022, and hence he was 2 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of 2 weeks must be considered as significant and inordinate, for which he explained at the hearing of his summons that after his release from the Castle Peak Bay Immigration Centre (“CIC”) on 10 June 2022, he moved into his present home in Sham Shui Po but did not inform the Court of his new address, so when he later received the decision in early December 2022 re-sent by the Court, he was already out of time with his intended appeal.

5.  The court record shows that the decision was first sent on the same day of 11 November 2022 to the Applicant at CIC where he was hitherto being detained but was returned through undelivered post, and was re-sent on 30 November 2022 to his new address upon being informed by the Immigration Department, of which it was clearly the Applicant’s duty to so inform the Court as soon as practicable of his release from CIC, and hence he had only himself to blame for the delay so caused to his intended appeal.

6.  More importantly, the Applicant also 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 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.

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.