NGUYEN VAN HUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 501/2022

[2023] HKCFI 1121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 501 OF 2022

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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 Decisions.

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 7 November 2022 (“the Court’s decision”), the Court dismissed his application for the reason that there was no reasonable prospect of success in his proposed judicial review.

4.  The applicant filed a summons on 13 April 2023 applying for extension of time to appeal against the Court’s decision. In his affirmation in support of his application, he said he has good grounds, 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. The deadline for his appeal is 22 November 2023. The applicant is late for more than 4 months. I shall consider the merits of his 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’s claim is that, if refouled, he would be harmed or killed by his creditor Bui Minh Tuan.

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

10.  Having considered the applicant’s evidence, the Board found that first, the applicant did not provide any evidence of the loan. Secondly, the creditor and the followers had ample opportunities to kill the applicant but did not do so. Thirdly, the Board observed that the applicant was in a stable state of mind after the alleged incidents. The above findings indicated that the applicant’s claimed fear of harm was not imminent or the ill-treatments did not attain a minimum level of severity. Further, the dispute was a pure monetary dispute without state involvement. Meanwhile, the country of origin information did not support a finding that state protection would not be available to the applicant. In any event, internal relocation was a viable alternative.

11.  The applicant has not been able to raise any valid ground to challenge the Board’s Decisions. There is not any realistic prospect of success in his intended appeal.

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