DAO TRONG TRUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2064/2018

[2023] HKCFI 1513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2064 OF 2018

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D E C I S I O N

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The Application

1.  The applicant is the husband of a family with his wife and the daughter. They were illegal immigrants by staying in Hong Kong without permission and they lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered their evidence, the Board, by its Decision (“the Board’s Decision”), rejected their appeal and affirmed the Director’s Decisions.

2.  They took out an application for leave to apply for judicial review of the Board’s Decision.

3.  The Court, by Form CALL-1 dated 26 July 2022 (“the Court’s decision”) refused their application.

4.  The wife and the daughter had appealed to the Court of Appeal against the Court’s decision. For reasons unknown, the husband did not join them in the appeal.

5.  By judgment of the Court of Appeal dated 8 December 2022, the Court of Appeal dismissed the appeal of the wife and the daughter.

6.  The wife and the daughter had taken out a Notice of Motion for appeal against the Court of Appeal’s judgment to the Court of Final Appeal. By judgment dated 26 April 2023, the Court of Appeal dismissed their Notice of Motion.

7.  The applicant filed a summons and an affirmation on 16 May 2023, applying for extension of time for filing the notice of appeal against the Court’s decision.

8.  In his affirmation, the applicant said that he was late because he was sick and he wanted an extension of time for a review of his case.

Discussion

9.  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.

10.  The Court shall 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.

11.  The deadline for his appeal is 10 August 2022. The applicant is late for more than 9 months. I shall consider the merits of his case.

12.  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].”

13.  The applicant’s claim is that, if refouled, he and his family would be harmed or killed by the public officers in Vietnam and a money lender for the unpaid debts and he feared that the Daughter would be sold to China.

14.  The Director of Immigration refused his application for the reason that his claim was not substantiated. He appealed to the Board.

15.  Having assessed the applicant’s evidence, the Board found that the evidence given by the applicant was so different in the material particulars that rendered his evidence unbelievable and unreliable. Alternatively, even if his evidence were accepted, having assessed the evidence and the relevant Country of Origin information (“the COI”), the Board considered that the applicant had failed to substantiate his claims on the applicable grounds. The Board also considered that state protection and internal relocation would be available to the applicant. Accordingly, the Board dismissed the applicant’s appeal and confirmed the Director’s Decisions.

16.  The applicant is unable to raise any valid reason to challenge the Board’s Decision.

17.  In the circumstances, I find that the applicant has not been able to show that there is any realistic prospect of success in his intended appeal.

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