NGUYEN VAN NGUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3165/2019

[2024] HKCFI 3453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3165 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 31 October 2024 seeking extension of time to appeal the order of this Court dated 27 September 2024 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”).  

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision.  Thus, by 31 October 2024 when the summons was filed, this application was twenty days out of time. 

3.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted.  Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time.  The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Discussion

4.  The application is twenty days out of time, which is substantial in the context of a 14-day period of appeal.  In his supporting affirmation, he claimed he needed time to arrange money for paying court fee to apply for appeal.  As there is no court fee to be paid for filing an appeal, his assertion cannot be a valid explanation for the delay.  To assist him to present a proper application for extension of time to appeal, directions were given to him to file an affirmation or a statement within 14 days of the directions setting out his explanation for the delay in applying for appeal and the grounds of his intended appeal.   He was also advised that his application for extension of time will be determined on paper after 21 days from the date of the directions, regardless whether those directions have been complied with or not.  As at the date of this decision, more than 36 days have lapsed, he has not complied with the directions.

5.  The procedural background leading to the present application is as follows.  The Applicant filed his Form 86 in Chinese.  Hence, the Court gave its decision in the Form CALL-1 in Chinese.  Then, upon receipt of the Chinese Form CALL-1, the Applicant claimed he could not read Chinese and asked for an English translation.  An English translation was issued to him on 31 October 2024, which was also the date when he filed his summons.  If time is deemed to run from the date he was given the English translation, his appeal would be made within time.  Since the delay was caused by his choice to commence the proceeding in Chinese, the Applicant has to bear the responsibility and consequences for delay which his choice of language brings.  Nevertheless, in the special circumstances of this case, this Court is prepared to grant him indulgence, if he has an arguable appeal with prospect of success.  But despite clear directions requiring him to put forward the grounds of his intended appeal, the Applicant has deliberately failed to comply.  As a result, the Court is prevented from assessing if his intended appeal has any prospect of success.

6.  It is well-settled law that the role of the courts in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In a judicial review, the court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].   Thus, the sole ground on which the Court may review the Decision of the Board is that the Board’s Decision had been tainted by any of the above vitiating elements.   Having rigorously re-examined the Decision, the Form CALL-1 and all the papers with anxious scrutiny and for reasons as explained in Paragraphs 17 to 20 of the Form CALL-1, this Court was unable to detect any such vitiating elements.  The Applicant has not identified what was wrong with that finding of the Court in refusing him leave to apply.  Even granting the Applicant indulgence for the delay, he has failed to demonstrate his proposed appeal has any prospect of success. 

7.  As the sum total of the first three factors is actually against granting extension of time, there is no need to consider prejudice to the proposed respondent and to public administration if extension of time is allowed.

Conclusion

8.  For the above reasons, the Applicant’s application for extension of time to appeal is refused.