BUI THANH TAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 707/2019

[2023] HKCFI 892

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 707 OF 2019

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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 5 October 2022 (“the Court’s decision”), the Court dismissed his application for the reason that there was no reasonable prospect of success in his proposed judicial review.

4.  The applicant filed a summons on 7 March 2023 applying for extension of time to appeal against the Court’s decision. In his affirmation in support of his application, he said “there is good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.”

Discussion

5.  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.

6.  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. The deadline for his appeal is 20 October 2022. The applicant is late for more than 4 months. I shall, nevertheless, consider the merits of his case.

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 applicant’s claim is that, if refouled, he would be harmed or killed by his creditor and the creditor’s subordinates as he was unable to repay the debt. 

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

10.  Having considered the evidence, the Board concluded that the applicant’s claim lacked credibility and that there was no evidence to substantiate his claim on all the applicable grounds. It therefore dismissed his appeal. 

11.  The applicant misconceives that it is unnecessary for the court to consider the merits of his appeal. In fact, the contrary is true. There is not any realistic prospect of success in his intended appeal.

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