RE NGUYEN VAN VINH AND OTHERS

HCAL 1670/2018

[2022] HKCFI 70

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1670 OF 2018

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D E C I S I O N

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The application

1.  The applicants are illegal immigrants and they lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decisions, rejected their application and they appealed to the Torture Claims Appeal Board (the “Board”). Having considered their evidence, the Board, by its Decision (the “Board’s Decision”), rejected their appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Form CALL-1 dated 15 January 2020 (the “Court’s decision”), the Court granted leave to the applicants to apply for judicial review of the Board’s Decision.

4.  Under Order 53, rule 5(5) of the Rules of the High Court, the applicants must file their originating summons within 14 days after the granting of leave.

5.  The applicants filed a summons on 17 December 2021 for extension of time to file their originating summons.

6.  In the 1^st applicant’s affirmation, on behalf of himself and other applicants, in support of their application, he said:

“… the order dated 15 January 2021 was written in English, we did not understand English, and we did not know if there was a deadline for filing an appeal at that time. We need detailed analysis and asked friends who know how to appeal help us….”

Discussion

7.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

8.  The delay is serious and significant. However, since leave had been granted to them, which means that they have a realistic prospect of success in their application for judicial review of the Board’s Decision, which concerns life and limbs of the applicants, I decide to exercise my discretion to give a final chance for the applicants to file their originating summons.

9.  I now make an order that unless the applicants file their originating summons by 28 January 2022 before 4:30 p.m., the applicants be debarred from filing their originating summons.

10.  As the 3^rd, 4^th and 5^th applicants are under-aged, the 1^st applicant should, on their behalf, apply to the Director of Legal Aid or the Official Solicitor as next friend for them as soon as possible.