BUI DUC HIEN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 788/2022

[2023] HKCFI 2264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 788 OF 2022

_____________

BETWEEN

____________

____________

D E C I S I O N

____________

1.  On 20 April 2023 I refused to extend time to 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 non-refoulement claim upon finding that there was no good reason for his late application, that none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no merits or reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 20 July 2023 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 High Court, Cap 4A ended on 4 May 2023, and hence he was some 2 ½ months 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 the intended appeal; and (iv) the prejudice to the respondent if 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 Applicant’s case, a delay of 2 ½ months must be considered as substantial and inordinate, for which he explained at the hearing of his summons that he was arrested for stealing and put in prison on 17 February 2023 in Tong Fuk Correctional Institution, and that although he did receive the decision sent by mail to there for him, he was unable to seek any legal assistance until after his discharge from prison and was transferred to the Castle Peak Bay Immigration Centre (“CIC”), but by then he was already out of time with his intended appeal.

5.  The court record shows that the decision was sent on the same day of 20 April 2023 to the Applicant at Tong Fuk Correctional Institution without being returned through undelivered post and where the Applicant could have access to legal assistance as in all correctional institutions, and in the absence of any further or relevant details or documentary evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good reason for his delay.

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 in which he just repeated his claim of fear of being killed by his creditor if refouled to his home country, and which he could only repeat at the hearing of his summons without putting forth any proper ground for his intended appeal. 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. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.