RE BUI DUC TOAN

HCAL 357/2021

[2021] HKCFI 3526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 357 OF 2021

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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 Form CALL-1 dated 5 August 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review.

4.  The applicant filed a summons on 12 November 2021 for appeal against the Order out of time.

5.  In his affirmation in support of his application, he complained that the Court reached its decision without allowing him an opportunity to clarify his case and situation in his country. He has no knowledge of the procedure of appeal and needs assistance. He is now being detained by the Immigration authorities.

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.  The deadline for the application to file his appeal is 19 August 2021, 14 days after the Court’s decision. He is therefore 2 months and 3 weeks’ late. I agree that the applicant has been detained in the detention centre of the Immigration Department, making it difficult for him to process his appeal. I cannot see any prejudice to the Director if extension of time is granted for his appeal. However, I also have to consider the prospect of the intended appeal. I shall do so below.

10.  He claimed that if refouled, he would be harmed or killed by his creditor from whom he had borrowed 1.5 billion Vietnam currency and he was unable to repay. Also, he said he would be arrested by Vietnam government if he returned to Vietnam.

11.  The Director found that the level of risk of him being harmed or killed by the creditor if he returned to Vietnam was assessed to be low [13]; that state protection was available to him [21]; that the soldiers’ acts did not represent the state and they might be investigated by the authority and he might also have a fair trial for the alleged charges in Vietnam [21]; and that internal relocation was an option open to him [24].

12.  The Board rejected his appeal for the reasons:

(1) His ill-treatment by the soldiers and the creditor had not reached the threshold for torture under BOR3 and his claim under BOR 3 risk failed. [63]

(2) The ill-treatment he alleged did not satisfy the conditions under the Ordinance and the chance that he might be tortured if he returned to Vietnam was rather remote. [74-76]

(3) There was no evidence in support of his claim on Persecution risk. [73]

(4) His case had nothing to do with BOR 2 risk. [77-79]

(5) Internal relocation was an option open to him. [80]

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13(1) .… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

14.  The applicant has not been able to set out any valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of this Court in the assessment of his application. He complained that he was not given an opportunity to clarify his case. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, the matter was dealt with on paper. In his affirmation in support of this application, he has not set out what he intended to clarify if there had been a hearing before the Court.

15.  There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for him to appeal and dismiss his application.