|
HCAL 1379/2021
[2026] HKCFI 4625
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1379 OF 2021
________________________
BETWEEN
| |
Pham Van Cuong |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board / |
Putative |
| |
Non-refoulement Claims Petition Office |
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
________________
| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: |
26 August 2026 |
__________________
DECISION
__________________
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 Form CALL-1 dated 11 March 2026 (“the Court’s decision”), the Court dismissed his application as there is no realistic prospect of success in his intended application.
4. The Court’s decision was sent to the applicant on 11 March 2026 at his last known address without being returned from the Post Office. He is deemed to receive the Court’s decision[1].
5. The time for filing the notice of appeal expired on 25 March 2026[2].
6. By summons filed on 7 July 2026, the applicant applied for appeal against the Court’s decision out of time. He is late for more that 3 months.
7. In his affirmation in support of his application, the applicant said that he was being detained and he does not understand English.
Discussion
8. Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, I decide to determine this application on paper without an oral hearing[3].
9. The Court will 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 will be harmed or killed by his creditor.
12. The Director rejected his claim because it was not substantiated. He appealed to the Board.
13. Having considered the evidence, the Board dismissed his appeal because it agreed with the Director that his claim was unsubstantiated.
14. Those reasons under paragraph 7 are not valid to challenge the Board’s Decision or the Court’s decision.
15. In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.
| |
(K.W. Lung)
Deputy High Court Judge
|
The applicant was unrepresented.
[1] Re: Ravinder Singh [2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023
“17. The applicant had not filed any notice of change of address for service to notify of any changes in his address. According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post. He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday. He was therefore deemed to have received the Court’s decision on 1 April 2022.”
[2] The public holidays are included in the 14-day period as per Order 2(5) of the Rules of the High Court
2. Reckoning periods of time (O. 3, r. 2)
(5) Where, apart from this paragraph, the period in question, being a period of 7 days or less, would include a specified day, that day shall be excluded.
(35 of 1998 s. 5; 18 of 2016 s. 5)
[3] Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022:
“16. … … In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court.”
|