RE DONG DUC DAI

HCAL 1805/2018

[2021] HKCFI 1871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1805 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 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 14 May 2020 (“the Court’s decision”), the Court dismissed his application for the reason that there was no reasonable prospect of success in his intended application.

4.  The applicant filed a summons dated 8 June 2020 applying for extension of time to appeal against the Court’s decision.  The file was misplaced and the application has not been dealt with within the usual time.

5.  In his affirmation in support of his application, he repeated the facts he alleged in support of his claim without explaining why he had delayed his appeal.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

7.  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].”

8.  The Board considered the applicant’s evidence and it accepted the Director’s findings [48].  The Board also held that relocation was an option open to the applicant [46].  The Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risk of harm if he returned was low [13]; that state protection was available to him [18] and internal relocation was an option open to him [19].  The references are those in the Board’s Decision and the Director’s Decision respectively.

9.  The applicant has not been able to say in what respect had the Board erred in its Decision.

10.  He is unable to show that he has any reasonable chance of success in his intended appeal.

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