RE PHAM VAN CUONG

HCAL 2650/2018

[2022] HKCFI 1345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2650 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 and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his First Decision dated 6 July 2016 (“the Director’s First Decision”) rejected his claim on Torture risk, BOR3 risk and Persecution risk. The Director also by his Second Decision dated 21 December 2016 reject his claim on BOR2 risk. He appealed the Director’s Decisions to the Board. His appeal against the Director’s First Decision was out of time. The Board refused to extend time for him to file the notice of appeal, in effect, dismissing his appeal against the Director’s First Decision. His appeal against the Director’s Second Decision was within time and the Board heard his appeal, taking into consideration of the facts in the Director’s First Decision. The Board, by its Decision dated 15 November 2018 (“the Board’s Decision”), dismissed his appeal against the Director’s Second 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. He did not apply for leave to judicial review the Board’s Decision dated 8 August 2017, which refused to extend time for him to file his notice of appeal, which has become final.

3.  By Form CALL-1 dated 15 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 13 April 2022 for appeal against the Court’s decision out of time, the deadline for the appeal being on 29 March 2022.

5.  In his affirmation in support of his application, he said he was unable to file his notice of appeal because the Registry was closed between 7 March 2022 to 11 April 2022. Even if the period during the closure of the Registry does not count, the application is late for 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 claimed that if refouled, he would be harmed or killed by the moneylender as he failed to repay the loan.

10.  The Director in his First Decision in relation to his claim on Torture risk, BOR3 risk and Persecution risk, found that his risk of being harmed of killed upon refoulement was low; that state protection was available to him and internal relocation was an option open to him. In the Director’s Second Decision, the Director rejected his BOR2 risk claim as there was no evidence to show that his right to life would be violated upon his return. He appealed to the Board.

11.  The Board refused to allow him to file his notice of appeal against the Director’s First Decision as it was out of time, but heard his appeal against the Director’s Second Decision. Having considered the facts in the Director’s First Decision and the facts in the Director’s Second Decision, the Board dismissed his appeal against the Director’s Second Decision.

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

13.  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.