HOANG HONG GIANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 821/2019

[2023] HKCFI 2640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 821 OF 2019

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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”).

2.  Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), dismissed his appeal. He applied to the Court for leave to apply for judicial review of the Board’s Decision.

3.  This Court, by Form CALL-1 dated 30 May 2023 (“the Court’s decision”) refused his application.

4.  The Court’s decision was sent to the applicant on 30 May 2023, but was returned by the Post Office. The Court made enquiry with the Director for updating the applicant’s address. The Court’s decision was then sent to the applicant at his last known address. However, the mail was returned from the Post Office again, with the remark “refuse to accept”. In the circumstances, the applicant was deemed to receive the Court’s decision on 28 June 2023, the next working day after the service of the Court’s decision. See Order 65, rule 5(2) and 7(2) of the RHC[1].

5.  The applicant filed a summons and an affirmation on 14 August 2023 applying for extension of time for filing the notice of appeal.

6.  The applicant has not filed any evidence to explain his delay in the filing of the notice of appeal.

Discussion

7.  Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3 of the RHC, having considered the applicant’s reason, I decide to determine this application 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.  The deadline for his appeal is 12 July 2023. The applicant is late for about 1 month. I shall consider the merits of his application.

10.  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].”

11.  The applicant applied to the Director for non-refoulement protection on the basis that if he returns to Vietnam, he will be harmed or killed by the Vietnamese authorities.

12.  The Director refused his application for the reason that his claim was not substantiated.

13.  He appealed to the Board. The Board found that his evidence was not credible and state protection and internal relocation are viable options for him.

14.  The applicant is unable to raise any valid ground to challenge the Board’s Decision.

15.  I find that the applicant has not been able to show that there is any realistic prospect of success in his intended appeal.

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