RE NGUYEN TIEN THUAN

HCAL 783/2019

[2022] HKCFI 1858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 783 OF 2019

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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 dated 28 April 2022 for extension of time to appeal the order of Deputy High Court Judge Li (“DHCJ Li”) dated 5 January 2022 (the “Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Summons”).

The Law

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

3.  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 delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

Length of delay and explanations for the delay

4.  By 28 April 2022, the time to appeal has expired. The application for leave to appeal is 99 days out of time. In the context of a 14-day period of appeal, the breach is very substantial.

5.  The Applicant gave no explanation in his Summons and supporting affirmation for the delay. To assist him to present a proper application for extension of time, this Court gave him directions by letter requiring him to file a statement within 14 days after the date of the directions setting out, inter alia:

(a)  his explanation for the delay; and

(b)  the date when and the circumstances under which the Order was received or brought to his notice, exhibiting supporting evidence.

He was also advised that the application for extension of time will be determined on paper after 21 days from the date of the directions, regardless whether the above directions have been complied with.

6.  In purported compliance with the directions, the Applicant lodged a letter dated 24 May 2022 explaining his delay. He wrote:

“I make this letter to reply the directions from High Court. Since I was released from the Immigration Office, I have not been given the original of Recognizance Form 8. It was only on 21 February 2022, the Immigration Department issued a Recognizance Form 8 for me.

After that , the situation of the Covid-19 epidemic became stressful, I contacted and met many patients with confirmed Covid-19 infection. So, I had to self-isolate at home. Moreover, the High Court has been closed since 7 March 2022 and I did not check carefully, so, I did not know the court would reopen on 12 April 2022. So, I delay filing my appeal.

…”

This letter did not comply with the directions. It failed to provide any information requested in the directions. The directions were given in simple English. The standard of the English used in the Applicant’s letter in response suggests that he understood the directions.

7.  The Applicant was given specific directions to state the date when the Order in respect of which leave to appeal is sought was received or brought to his notice. He did not comply. Instead, he mentioned about not having been given his Recognizance Form 8 by the Immigration Department.

8.  The Order was sent to his residential address as stated in his supporting affirmation filed with his application for leave to apply for judicial review. It is the same address to which the Form Call-1 and Order were sent and also the same address stated in his Summons in this application. The Form Call-1 and Order have not been returned in the course of mail. The Applicant has not moved from that address. There is nothing to suggest that the Order had not reached him within the usual delivery time of one to two days after posting. Another copy of the Form Call-1 and Order was sent to his then solicitors. Even if he had not received them, he would have been informed by his solicitors of the outcome of his application. But he avoided informing the Court the date when he received the Order or the circumstances under which the Order was brought to his notice. There is also no reason to doubt his solicitors failed to inform him the outcome of his application.

9.  The Applicant tried to explain the delay by asserted his self-isolation because he had contacted many Covid-19 patients. He did not claim to have contracted Covid-19 himself. There is no reason for him not to come to court to file his appeal. That explanation is incredible and unreasonable. Besides, he deliberately failed to inform the Court when he received the Order. It is impossible to assess the validity of his explanation of self-isolation.

10.  The impression conveyed by his letter is that he was trying to avoid providing the information. This cast serious doubts on the veracity of his allegation of self-isolation or not having received the Order in time for him to appeal. The irresistible inference is that his explanation is false. He had no valid explanation for the delay.

Prospect of success of the intended appeal

11.  The Applicant did not state the grounds of his intended appeal. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2]. In the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review, the court can only re-focus on these vitiating elements in the decision when considering the prospect of success of the intended appeal against its decision.

12.  I have rigorously re-examined the Form Call-1, the Decision, the papers and the evidence with anxious scrutiny. I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. I am also satisfied that DHCJ Li had likewise rigorously examined the Decision with anxious scrutiny and satisfied himself of the same. The Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

13.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. His application is an abuse of legal process and would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance. It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

14.  The delay of 99 days is very substantial. There is no valid explanation for the delay and no arguable ground of appeal. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. Despite having been given a last opportunity to explain the delay in lodging the appeal and to furnish his grounds of appeal, the Applicant deliberately failed to do so. The only reasonable inference is that he has no explanation for the delay and no arguable ground of appeal. His application is an abuse of legal process. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. For all these reasons, the application for extension of time to appeal is refused.