RE DANG VAN TUAN

HCAL 892/2021

[2021] HKCFI 2918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 892 OF 2021

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). Having considered his evidence, the Board, by its Decision (the “Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Order dated 28 July 2021 (the “Court’s decision”), the Court refused to grant him leave to apply for judicial review of the Board’s Decision and dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons on 16 September 2021 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said that he did not receive the Court’s decision on time. He considered that the Court’s decision was unfair because it was reached without allowing him an opportunity to clarify his case and situation in his country. He asked for a hearing for him to present more in detail. But he did not say what he wanted to present in detail to the Court.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

7.  In AW v. Director of Immigration and William Lam, CACV 63 of 2015, 3 November 2015, §27, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

8.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board accepted the basic facts that he had been threatened verbally by the creditor and his people; that he had been physically assaulted on some occasions and that he subjectively feels that he would be harmed by the creditor if he is seen again by the creditor [41]. However, there was no evidence to show that the creditor or his people would harm or kill him if he returned to Vietnam [43]; that he faced risk throughout Vietnam; that he had suffered injuries to the required severity and that the state would not help him for a Convention reason. The Board also found that state protection would be available to him [69] and he could not bring himself within the definition of “refugee” within the context of the Convention [70]. The applicant was unable to prove BOR 2 risk [73]. His claim on Torture risk and BOR 3 risk also failed [78]. The Board also found that internal relocation was open to him [94]. The references are in the Board’s Decision.

10.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

11.  The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error. There is no realistic prospect of success in his intended appeal against the Court’s decision.

12.  In the circumstances, I refuse to extend time for his appeal against the Court’s decision. Accordingly, I dismiss his application.