DINH TRUNG THAO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 759/2019

[2023] HKCFI 1714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 759 OF 2019

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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 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.  This Court, by Form CALL-1 dated 27 January 2023 (“the Court’s decision”) refused his application.

3.  The applicant filed a summons and an affirmation on 23 June 2023, applying for extension of time for filing the notice of appeal.

4.  In his affirmation, he said that there is a good ground of appeal, but it is not necessary to be considered at this stage.

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 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 11 February 2023. The applicant is late for about 4 months. 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 is that, if refouled, he would be harmed or killed by the creditor as he was unable to repay his debt. Also, he said that he may be arrested by police as he had protested against the police in Vietnam.

10.  The Director of Immigration refused his application for the reason that his claim was not substantiated. He appealed to the Board.

11.  Having considered the applicant’s evidence, the Board found that he failed to establish that he will have real risk of harms as alleged and dismissed his appeal.

12.  The applicant is unable to raise any valid reason to challenge the Board’s Decision. It is his misconception that his grounds of appeal are not to be considered at this stage. The Court has to consider them at this stage to determine the merits of his intended appeal.

13.  In the circumstances, I find that the applicant has not been able to show that there is any realistic prospect of success in his intended appeal.

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