RE BUI PHU LE

HCAL 2401/2018

[2021] HKCFI 972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2401 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”). By Notice of Decision dated 25 August 2016 and Notice of Further Decision dated 28 July 2017 (“the Director’s Decisions”), 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 dated 23 October 2018 (“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. By Order dated 27 July 2020 (“the Court’s decision”), the Court refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

3.  The applicant intends to appeal to the Court of Appeal against the Court’s decision. However, he is out of time under Order 53, rule 3(4) of the RHC. He filed a summons on 11 March 2021 for extension of time for his appeal.

4.  He set out his grounds in support of this application that he was being imprisoned; that the Court’s decision was unfair without allowing him an opportunity to clarify his case and situation in his country; that he was unrepresented and he did not know the time limit for appeal and that he did not receive the court’s letter inviting him to attend court as he was being imprisoned.

Discussion

5.  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.

6.  In Re Adumekwe Rowland Ejike [2019] §19, the Court of Appeal held that in order to determine whether time should be extended for the applicant to appeal the Court’s decision refusing leave to apply for judicial review to the Court of Appeal, the prospect of success of the intended appeal is important and the court will not grant extension of time for a hopeless appeal to be pursued and the applicant has to identify any error on the part of the Judge in refusing to grant him leave to apply for judicial review. [23]

7.  The Court had, in its decision, set out the reasons why it refused to grant leave to the applicant to apply for judicial review of the Board’s Decision.

8.  The Board had considered the evidence and came to its conclusion that the applicant had not demonstrated that he was at risk of any form of prospective harm of a proscribed kind were he to return to Vietnam.

9.  The Court had considered the grounds for his application for leave to apply for judicial review and dealt with them in its decision.

10.  The Court had considered the Board’s Decision and found that it was without fault.

11.  His grounds for this application are not valid. He had not asked for a hearing in his Form 86. He was invited to come to court, but he did not turn up. If he wished to clarify his case, he should have set out his explanation to clarify his situation in his affirmation. But he had not done so.

12.  In the circumstances, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against the Court’s decision. I refuse to extend time for his appeal. I also refuse to grant leave for him to advance his new ground of appeal, which remains unknown to me. Accordingly, I dismiss his application.