TRAN HOANG TRUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2077/2018

[2024] HKCFI 608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2077 OF 2018

________________________

________________________

________________________

D E C I S I O N

________________________

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 11 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 Court’s decision was sent to the applicant.  However, the court received a returned mail from the Post Office.  The Court Clerk obtained the Immigration Department for the applicant’s last known address.  The Court’s decision was sent to this last known address on 27 September 2022 and returned to us again.  Pursuant to Order 65, rules 5 (2)(b)  and 7(2)  of the RHC, the Court’s decision was deemed to be served on the next following day, not being a specified day such as Saturday or a general holiday[1], that is to say, 28 September 2022 (Wednesday).

4.  The deadline for appeal is on 12 October 2022.

5.  By summons filed on 11 December 2023, the applicant applied for appeal the Court’s decision out of time.  He is therefore about 2 months out of time.

6.  The applicant submits that there is good ground of appeal, but it is not necessary to consider it at this stage.

Discussion

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

8.  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.

9.  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].”

10.  The applicant said that if refouled, he would be harmed or killed by his creditor because he was unable to repay his debt.

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

12.  Having considered the evidence, the Board found that his creditor did not have the intention of harming or killing him.  The Board further found that internal relocation was viable.  For those reasons, the Board dismissed his appeal.

13.  The applicant has not raised any valid reason to challenge the Board’s Decision.  His submission that it is not necessary for the court to consider the reason for his appeal is misconceived.  He therefore fails to show that there is a reasonable prospect of success in his intended appeal.

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