RE DOAN DUY BA

HCAL 1095/2021

[2021] HKCFI 3185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1095 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 Order dated 20 September 2021 (the “Court’s decision”), the Court refused to grant him leave to apply for 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 18 October 2021 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he submitted that he does not read English. It was not until the immigration officer told him that his application had been rejected by the Court did he know the situation. He considers that the Court’s decision was unfair because he was not given a chance to clarify his case and his situation in his country. Therefore, he asks the case to be fixed for an oral hearing for him to present more detail.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons and there being no particular as to what the applicant intends to produce in the hearing, 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.  I shall therefore first consider the merit of his intended appeal.

10.  The Board considered the applicant’s evidence the Board rejected his appeal and affirmed the Director’s Decision for the reasons that the incidents are personal matters, which are not within the context of the persecution risk [67]; that there was no evidence to establish violation of the applicant’s right to life [73] and that internal relocation was an option open to him [80].

11.  His grounds for this application are not valid as his intended appeal has no merit.

12.  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.

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