RE BUI VAN SINH

HCAL 493/2021

[2021] HKCFI 3455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 493 OF 2021

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D E C I S I O N

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1.  On 20 April 2021 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal/petition regarding his non-refoulement claim upon finding 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 (“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 29 June 2021 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 2021, and hence he was 8 weeks 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 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 8 weeks must be considered as substantial or inordinate, for which he did not provide any explanation in his summons or supporting affirmation, nor did he attend the hearing of his summons without any explanation.

5.  The court record shows that the decision was sent on the same day to the applicant’s last reported address, and in the absence of any explanation from him in his affirmation or in person due to his absence from the hearing of his summons, I do not find any good reason for his serious delay.

6.  More importantly, the applicant 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 reasonably be argued that the decision was unfair or unreasonable in his summons, while in his affirmation he just repeated his claim as before that he fears of being killed by his creditor over his outstanding debts, and as noted above he also failed to attend the hearing of his summons so as to make any further representations for his application. 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. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.