TRAN NGOC THUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2724/2018

[2023] HKCFI 2837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2724 OF 2018

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BETWEEN

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D E C I S I O N

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1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director 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 20 May 2021 (“the Court’s decision”), the Court 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 28 September 2023 for extension of time to file his notice of appeal. In his supporting affirmation, he said he cannot go back to his home country because his life is not safe there. He also said he is not satisfied with the Court’s decision.

Discussion

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

6.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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.

7.  The deadline for his appeal is 4 June 2021. The applicant is late for about 2 years and 3 months. He has given no explanation for his delay. Nevertheless, I shall consider the merits of his case.

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.  The applicant’s claim was based upon his allegation that if refouled, he would be ill-treated or harmed by the police as his tenant was arrested in a treason case and he feared that the police might accuse him of the same as he had made a lot of trips going in and out of the country on previous occasions.

10.  Having considered the evidence, the Board found that his evidence was not believable and state protection was available to him if he encounters difficulty upon his return to Vietnam.

11.  The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

12.  There is not any realistic prospect of success in his intended appeal.

13.  In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.