RE NGUYEN QUOC CUONG

HCAL 631/2021

[2022] HKCFI 2175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 631 OF 2021

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D E C I S I O N

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1.  On 22 October 2021 I refused to extend time to the Applicant’s late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal/petition regarding his non-refoulement claim upon finding that there was no good reason for his extremely serious delay of 17 months with the filing of his application, that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“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 10 January 2022 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 the High Court, Cap 4A ended on 5 November 2021, and hence he was more than 9 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 more than 9 weeks must be considered as very substantial or inordinate, for which he explained in his affirmation that his roommate collected his mails from the mailbox of the building where he resides but forgot to give them to him until much later when by then he was already out of time with his intended appeal.

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and even if it was indeed his roommate’s fault as alleged, and there is no other evidence to corroborate his bare assertion as he also failed to attend the hearing of his summons, certainly that explanation cannot amount to any good or valid reason for his serious delay with his intended appeal.

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 stated that the decision “has been reached unfairly without allowing (him) an opportunity to clarify (his) case and situation in (his) country”, of which I take it to mean that he was not given any oral hearing for his leave application, the fact is that he never requested for any in the first place, and as it is entirely within the Court’s discretion to decide whether such applications may be dealt with an oral hearing or just on paper, and as the Applicant failed to attend the hearing of his summons so as to elaborate on what clarification that he might have been denied to make regarding his case or the situation in his country, I do not find this ground reasonably arguable for his intended appeal. 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.