RE PHAM HUY TOI

HCAL 2810/2018

[2021] HKCFI 2920

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2810 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, 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 17 August 2021 (the “Court’s decision”), the Court refused to grant him 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 16 September 2021 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he repeated his reasons for coming to Hong Kong to seek asylum.

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.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that he was unable to provide evidence as to the details of the loans, the Board found that he was not a credible witness and he had failed to prove the existence of the loans [31]; that his evidence was general and vague and the Board did not accept that he was threatened by the 3 creditors and he failed to prove there would be likelihood that he would be harmed or killed if he returned to Vietnam [38 & 39]; that state protection would be available to him [43] and that internal relocation was an option open to him [64]. The references are in the Board’s Decision.

10.  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.

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