RE DANG VAN TUAN

HCAL 516/2018

[2021] HKCFI 689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 516 OF 2018

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D E C I S I O N

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1.  On 23 July 2020 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal 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 or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  The applicant by a summons issued on 23 October 2020 sought 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 6 August 2020, and hence he was late by about 11 weeks 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 11 weeks must be considered as substantial or excessive, for which he did not provide any explanation in his supporting affirmation, nor did he attend the hearing of his summons, and as 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 not see any good reason for his serious delay.    

5.  More importantly, nor did he put forward 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, and as noted above, he also failed to attend 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.

6.  Furthermore, the applicant on 8 March 2021 wrote to say that he has been told by his family that his home country Vietnam is now much more peaceful and that he would like to leave Hong Kong to return to Vietnam to be with his family.         

7.  In the premises, as it would be futile to extend time for what appears to be a hopeless appeal, and in view of the applicant’s latest confirmation of his intention to leave Hong Kong to return to Vietnam, I accordingly dismiss his application for extension of time to appeal.