BUI NGOC LE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 991/2021

[2023] HKCFI 394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 991 OF 2021

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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 9 September 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 17 June 2022 (the “Order”) refusing his application for leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 2 July 2021.

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. By the time when the Summons was filed, the application is two months and eight days out of time, which is very substantial in the context of a fourteen-day appeal period.

THE LAW

3.  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.

LENGTH OF DELAY, REASONS FOR THE DELAY AND PROSPECT OF SUCCESS

4.  The Applicant’s explanation for the delay in appealing is that he had never received any letter from the court informing him that his Leave Application had been refused. He also said he did not speak English or Chinese and did not know how to appeal. He also said he wanted to advance a new sole ground of appeal, but he did not give any particulars.

5.  Except for his complaint of non-receipt of the Order and Form CALL-1, these assertions are not valid explanations for the delay. If he had not received the Order and Form CALL-1, how could he have known that his Leave Application had been refused and that he had to raise an appeal. Instead of rejecting his explanation forthwith, out of abundance of caution and with a view to explore the existence of a possible explanation for the delay, this Court gave him specific directions to file a statement by 10 January 2023 stating the date and circumstances when he was informed of the outcome of his Leave Application and the grounds of his intended appeal. As at the date of this decision, fifty-seven days have lapsed since the date of the directions, this Court has not received the grounds of his intended appeal. In the circumstances, he has no reasonable explanation for the substantial delay and no grounds of intended appeal demonstrating any prospect of success.

PREJUDICE TO THE RESPONDENT

6.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge which has no prospect of success to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing the application to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

7.  The Applicant has no valid explanation for a substantial delay. Despite directions having been given to him to file proper explanation for the delay and the grounds of his intended appeal, he did not respond. His intended appeal has no prospect of success. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, his application for extension of time to appeal is refused.