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

HCAL 1434/2018

[2023] HKCFI 966

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1434 OF 2018

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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 7 February 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 12 January 2023 (the “Order”) refusing his application for leave to apply for judicial review of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 21 February 2017 (the “leave application”).

The Law

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal the judge’s order to the Court of Appeal within 14 days after such order was made. In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success in the intended appeal; and

(4)  prejudice to the respondent if extension was granted.

Discussion and conclusion

3.  By the time when the Summons was filed, the application was twelve days out of time which is substantial in the context of a fourteen-day appeal period. No explanation for the delay was advanced in his Summons or supporting affirmation.

4.  The Court noted that the Order and Form CALL-1 were sent to the Applicants’ last known address in Tuen Mun whereas his address as stated in the Summons is in Shamshuipo. There is no record in the Court file showing that he had updated the Court with his change of address. Directions were given to him by letter dated 13 February 2023 to file a statement stating, inter alia, the date and circumstances when he was first informed of the outcome of his leave application and the grounds of the intended appeal. As at the date of this decision, 72 days have lapsed since the date of the instructions, he has not responded.

5.  On 7 March 2023, the Court subsequently received the Order and Form CALL-1 sent to his Tuen Mun address through the returned mail, confirming this Court’s suspicion that the Applicant had not received them because he had moved to Shamshuipo. If he had not received the Order because he had moved without updating the Court with his new address, he only had themselves to blame for the non-receipt of the Order and delay occasioned and bear the consequence: Karamjit Singh[3]. Despite an opportunity had been given to him, he failed to give any reasonable explanation for the delay. The Court could only come to the conclusion that he has no reasonable explanation for the delay.

6.  In his Summons, the Applicant asserted that there is a good ground of appeal that was not necessarily considered in the leave application, but he gave no particulars of this “good ground”. It is incumbent on an applicant seeking extension of time to appeal to set out his grounds of intended appeal which is one of the factors for the court’s consideration in granted leave. But he did not provide the particulars of this “good ground”. In the absence of any grounds of the intended appeal, the Court could only come to the conclusion that he had no intention to prosecute his intended appeal and his intended appeal has no prospect of success.

7.  For all these reasons, the Court found the Applicant’s intended appeal has no prospect of success. In the circumstances, there is no need to consider the prejudice to the proposed respondent and to public administration if this challenge is allowed to proceed, though the prejudice is obvious. Accordingly, the Applicant’s application for extension of time to appeal is refused.