RE NGUYEN KHANH DUY

HCAL 92/2018

[2020] HKCFI 1958

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 92 OF 2018

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D E C I S I O N

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1.  On 9 December 2019 I refused to extend time for the Applicant to file his late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his non-refoulement claim upon finding that there was no good reason for extending the period within which he may file his late application due to his failure to provide any valid explanation for his 6 weeks’ delay with his application, that he had failed to put forward any proper ground for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration 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 19 December 2019 seeks leave to appeal against that decision which was interlocutory in nature: see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, and of which section 14AA of the High Court Ordinance, Cap 4 provides that no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted.

3.  However, that decision has recently been overturned by the Court of Final Appeal in H v Director of Immigration and AH v Director of Immigration, FACV 1 & 2 of 2020, [2020] HKCFA 22, 14 July 2020, which held that leave to appeal is not required against a decision not to grant an extension of time to apply for leave to apply for judicial review, and to which the said s 14AA of the Ordinance does not apply by reason of Order 59 rule 21(1)(g) of the Rules of the High Court, Cap 4A which provides that a person does not require leave to appeal against an order refusing to grant leave to apply for judicial review.

4.  In the circumstances and for these reasons, the Applicant therefore did not require leave to appeal when he issued his summons on 19 December 2019 and was then still within the 14-day period to file his appeal under Order 53 rule 3(4) of the RHC, but as he is now, through no fault of his own, way out of time with his intended appeal, no doubt also caused by the General Adjourned Period announced by the Judiciary due to the Covid-19 pandemic with the general closure of the court and tribunal registries from 29 January 2020 to 3 May 2020, I would therefore extend time for the Applicant to file his notice of appeal against my decision of 9 December 2019 within 14 days of this order.