RE NGUYEN XUAN DIU

HCAL 373/2018

[2021] HKCFI 593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 373 OF 2018

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D E C I S I O N

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1.  On 5 August 2020 I refused to extend time to the applicant’s late application for leave to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding no good reason for his serious delay, that none of the grounds put forward by him were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  The applicant now by a summons issued on 7 September 2020 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 expired on 19 August 2020, and hence he was late by 19 days 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 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 applicant’s case, a delay of 19 days cannot be regarded as insignificant, for which he explained in his supporting affirmation that he was unrepresented and had no legal advice regarding the procedure to appeal, and that very often he was handed his mails late by the other tenants in his flat that he was therefore out of time by the time when he decided to appeal.

5.  The applicant however did not provide any corroborating evidence in support of his bare assertions, while the court record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post. I do accept that he was without legal representation and might have to look for help to prepare his appeal documents, and in view of his relatively insubstantial delay, I propose to focus on the merits or prospects of his intended appeal.

6.  The applicant however has 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 be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation, nor did he appear at the hearing of his summons. 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, 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.