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

HCAL 1647/2019

[2024] HKCFI 3280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1647 OF 2019

_____________

_____________

_______________

D E C I S I O N

_______________

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.  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 30 July 2024 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application.

4.  The Court’s decision was sent to the applicant on 30 July 2024 at his last known address without return from the Post Office. He is deemed to receive the Court’s decision.

5.  The time for filing the notice of appeal expired on 13 August 2024.

6.  By summons filed on 5 November 2024, the applicant applied for appeal against the Court’s decision out of time. He is late for about two and a half months.

7.  In support of his application, the applicant said that he did not received the Court’s decision and he did not know he only had 14 days to file an appeal.

Discussion

8.  Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[1].

9.  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. I shall consider the merits of his case.

10.  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].”

11.  The applicant claimed that if refouled, he would be harmed or even killed by his creditor (“the creditor”), who had triad background and had connections with the authorities, because he failed to repay a loan to her.

12.  The Director rejected his claim because it was not substantiated. He appealed to the Board.

13.  Having considered the evidence, the Board found that although the applicant’s evidence was acceptable, however, the facts admitted did not support his non-refoulement claim under the applicable risks.

14.  There is no valid reason from the applicant to challenge the Board’s Decision. It is trite law that the Court should not interfere with the finding of the facts by the Board without good reason.

15.  There is no valid reason from the applicant to challenge the Court’s decision.

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