RE PHAM QUANG VINH

HCAL 26/2022

[2022] HKCFI 1412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 26 OF 2022

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D E C I S I O N

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The application

1.  The applicant was an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (the “Director”) in 2015. The Director, by his Decision dated 4 May 2017, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). His appeal was dismissed by the Board. He was then repatriated to Vietnam. The applicant was arrested by police for illegally entering Hong Kong on 1 September 2021. He made a subsequent claim with the Director, who, by Decision dated 25 October 2021 (“the Director’s Decision”), rejected his application.

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 Director’s Decision.

3.  By Form CALL-1 dated 8 March 2022 (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.

4.  The applicant filed a summons on 14 April 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said the Court’s decision was unfair, without allowing him to clarify his cause and situation in his country. Also, the Court’s Registry was closed from 7 March 2022 to 11 April 2022. He would be killed and tortured if he returned to Vietnam. Even if the period of closure of the Court Registry should not count, the deadline for his appeal is 12 April 2022. The delay is 2 days.

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. The delay is insignificant. Nevertheless, I shall consider the merits of the 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 submitted new grounds in support of his subsequent claim. The Director observed that these new grounds were, in fact, the same story for his previous claim where he claimed that the creditor, Hieu and his subordinates would harm or kill him because of his inability of repaying his loan. Although he had another creditor Tien, the reasons for his subsequent claim were the same. The Director and the Board had considered and rejected them. In particular, there was no evidence that the state was involved in the lending business and that state protection was therefore available to him. Also, alternative relocation was an option open to him too. There is no evidence from the applicant to refute these two important factors.

10.  The applicant is unable to set out any valid ground to challenge the Director’s Decision. Nor can he point out any error on the part of this Court in the assessment of his application.

11.  There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for him to appeal and dismiss his application.