RE LE VAN HUNG AND OTHERS

HCAL 903/2018

[2021] HKCFI 1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 903 OF 2018

_____________

_____________

D E C I S I O N

_____________

1.  On 18 September 2020 I refused to grant leave to the applicants, a married couple with their minor son from Vietnam, to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing their appeal regarding their non-refoulement claim upon finding none of the grounds put forward by them reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration or the Board or in their decisions, and that there was no reasonable prospect of success in their intended application.

2.  The applicants now by a summons issued on 25 February 2021 seek extension of time to appeal against that decision, as the 14-day period for them to file their appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 5 October 2020, and hence they were almost 5 months late with their 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 applicants’ case, a delay of almost 5 months must be considered as very substantial, for which the 1^st Applicant (the husband) who appeared at the hearing of their summons, and having confirmed that he spoke on behalf of his family, explained that they had intended to return to Vietnam after their appeal was dismissed by the Board, but then the Covid-19 pandemic struck and that there was no flight for them to return to Vietnam, and as their son, i.e. the 3^rd Applicant is still in the middle of his school term in Hong Kong that they were advised that they must launch their appeal proceedings in order to be able to remain in Hong Kong until the 3^rd Applicant finishes his school term sometime later this year.

5.  None of these of course can be accepted as a proper or valid reason for their serious delay had they even genuinely intended to proceed with their appeal, and as such I do not see any good reason for their serious delay.

6.  For the same reason the 1^st Applicant confirmed that they do not have any grounds of appeal, which is why they have not filed any supporting affirmation or put forward any draft grounds of appeal in support of their application either. As such and in the absence of any error in the decision being clearly and properly identified by the applicants, I do not see any prospect of success in their intended appeal.

7.  I am of course mindful of the fact that the 3^rd Applicant is a minor born on 16 August 2007 and now aged 13 was not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, and that it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in their appeal before the Board, as the proper approach to which have recently been considered by the court of Appeal in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, CACV 32/2020, 27 November 2020, and which held that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

8.  In the present case, the claim of the 3^rd Applicant was premised fundamentally on that of his father the 1^st Applicant of fear of harm from his creditor over his loan problem but which had been rejected by the Board which disbelieved that the 1^st Applicant had ever borrowed any loan from his creditor and/or threatened by the creditor for the reasons set out in paragraphs 25 – 35 of its decision and referred to in my decision (see [11]), and for which I did not find any merits in the intended judicial review of all three Applicants including the son. I shall therefore treat the absence of legal representation for the son in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review.        

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