RE NGUYEN NGOC DUC

HCAL 2749/2018

[2022] HKCFI 3142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2749 OF 2018

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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 for staying in Hong Kong without permission 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, 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 Form CALL-1 dated 5 August 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review against the Board’s Decision.

4.  The applicant filed a summons on 28 September 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he has lost his Recognizance Form 8, so he was unable to take the oath and file the appeal. He has to apply for a new Recognizance Form 8 from the Immigration Department.

Discussion

5.  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.

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. The deadline for appeal is on 19 August 2021. I shall consider the merits of the case.

7.  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].”

8.  The applicant claimed that, if refouled, he would be harmed or killed by his creditor from whom he had borrowed USD 30,000 for his chicken farm business, which failed due to plague. He was unable to repay his debt.

9.  By way of the Director’s Decision, the Director refused the applicant’s claim for the reason that his claim was not substantiated. He appealed to the Board.

10.  The Board rejected his appeal and affirmed the Director’s Decision for the reasons that his evidence was not reliable and was not accepted [20-24]; that the probability that the creditor would pursue him after he returned to Vietnam was low [27]; that state protection would be available to him [29 & 30] and that internal relocation was an option open to him [31]. The Board further found that the risk that he would be subjected to Torture risk would be low [39]; he failed to establish BOR 2 or BOR 3 risks [45]; that his case did not fall within the context of Persecution risk [47]. The references refer to the Board’s Decision.

11.  There is no valid reason from the applicant to show that there is any realistic prospect of success in his intended appeal.

12.  In the circumstances, I refuse to extend time for the applicant to file his notice of appeal. Accordingly, I dismiss his application.