TRAN VAN ANH v. TORTURE CLAIMS APPEAL BOARD

HCAL 325/2023

[2023] HKCFI 1936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 325 OF 2023

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BETWEEN

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D E C I S I O N

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1.  On 23 May 2023 Deputy High Court Judge To refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal/petition regarding his non-refoulement claim at his own request to withdraw it and upon finding that there was no proper basis for his intended challenge as the withdrawal of his appeal was made out of his own free will with full understanding of the consequences of his decision and hence the withdrawal was validly made and was properly dismissed by the Board in accordance with Section 37ZT of the Immigration Ordinance, Cap. 115 that there was no error of law or procedural unfairness in such decision of the Board, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 8 June 2023 seeks extension of time to appeal against that decision of the Learned Judge, 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 6 June 2023, and hence he was 2 days 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 days cannot on any view be considered as significant, for which he did not provide any explanation in his summons or supporting affirmation, nor did he attend the hearing of his summons without any explanation, but given the insignificance of his delay, I propose to focus on the prospect of his intended appeal.

5.  However, the Applicant 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 in his affirmation in which he just asserted to have a good ground of appeal but without stating what it is, nor as noted above did he attend the hearing of his application without any explanation. 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.

6.  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.