RE LE TOAN THANG

HCAL 1131/2021

[2021] HKCFI 3440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1131 OF 2021

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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 Decision, 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 5 October 2021 (the “Court’s decision”), the Court refused to grant him leave to apply for leave to apply for judicial review of the Board’s Decision and dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons on 27 October 2021 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said that he does not know to make the appeal application. He has to obtain his friend’s assistance. He is no satisfied with the Court’s decision because he was not given a chance to clarify his case in his own country. He asked for an oral hearing of this application.

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.

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.  I shall therefore first consider the merits of his intended appeal.

10.  The Board considered the applicant’s evidence. The adjudicator, having cross-examined the applicant, dismissed his appeal and affirmed the Director’s Decision. The Board further found that it did not accept his evidence and at paragraph 76 of the Decision, it said:

“The Appellant’s evidence relating to the facts on which his claim was based was questionable and unreliable, and I did not find his evidence, even to the low standard applicable, to be credible. I am therefore unable to attach any weight to his evidence that there is a genuine threat to harm him by a moneylender in Vietnam. On totality of the evidence, I was not persuaded that he had borrowed from a moneylender and that he had been assaulted and threatened by a moneylender in Vietnam.”

11.  His grounds for this application are not valid. Since the Board had given no credit to his evidence, he does not have the factual basis in support of his claim.

12.  The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error. There is no realistic prospect of success in his intended appeal against the Court’s decision.

13.  In the circumstances, I refuse to extend time for his appeal against the Court’s decision. Accordingly, I dismiss his application.