NGUYEN VAN HOA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 240/2022

[2024] HKCFI 506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 240 OF 2022

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BETWEEN

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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 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 Order dated 3 August 2022 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application. The deadline for appeal is on 18 August 2022.

4.  By summons filed on 18 January 2024, the applicant applied for appeal against the Court’s decision out of time. His application is late for one year and five months.

5.  The applicant filed his affirmation in support of his application, in which he said the Board’s Decision was not reasonable as the Board did not consider his grounds. He submitted copy of medical reports to prove he and his mother were attacked and they were injured.

Discussion

6.  Relying on 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, I decide to determine this application on paper without an oral hearing.

7.  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.

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.  The applicant said that if refouled, he would be harmed or killed by the gangster group named Dang Rong Den (“DRD”).

10.  The Director rejected his claim because it was not substantiated. He appealed to the Board.

11.  Having considered the evidence, the Board found that the applicant’s evidence was unreliable and state protection and internal relocation would be available to him.

12.  The reasons he has raised in paragraph 5, supra, are evidence that should be considered by the Board. If they have been given to the Board, the Board must have considered them and rejected them. If they were not given to the Board, the applicant cannot submit to this Court for assessment of the facts of his claim. In the circumstances, the applicant has raised no valid reason to challenge the Board’s finding of the facts and there is no realistic prospect of success.

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