RE RE: NGUYEN BUI SON AND OTHERS

HCAL 352/2019

[2023] HKCFI 124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 352 OF 2019

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D E C I S I O N

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1.  On 22 April 2022 I refused to extend time to the application of the applicants, a married couple and their adult son, for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their appeal/petition regarding their non-refoulement claim upon finding that there was no good reason for their very serious delay of almost 2 years with their application, that none of their proposed grounds were reasonably arguable for their 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 merit or reasonable prospect of success in their intended application.

2.  The applicants now by a summons issued on 5 September 2022 seek extension of time to appeal against that decision, as the 14-day period for them to file their appeal under Order 53 rule 3(4) of the Rules of the High Court, Cap 4A expired on 6 May 2022, and hence they were some 4 months late with their 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 applicants’ case, a delay of 4 months must be considered as very substantial and inordinate, for which they explained at the hearing of their summons that they never received the decision in the mail, and that it was only later when they reported on their recognizance that they were so informed by their immigration officer, but by then they were already out of time with their intended appeal.

5.  The court record shows that the decision was sent on the same day to the applicants’ last reported address which is the same as stated in their present application, and in the absence of any further details or evidence to corroborate their bare assertions, I am not satisfied that the applicants have provided any good or valid reason for their serious delay.

6.  More importantly, nor did the applicants 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 their summons or in the affirmation in which they just repeated their claim as before, as they also did at the hearing of their summons. As such and in the absence of any error in the decision being clearly and properly identified by the applicants, I do not see any prospect of success in their 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, and I accordingly refuse their application for extension of time to appeal and dismiss their summons.