RE TRINH THE CONG

HCAL 2471/2018

[2022] HKCFI 1970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2471 OF 2018

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D E C I S I O N

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1.  The applicant is an illegal immigrant for remaining in Hong Kong without permission. He lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration. He appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, his appeal was dismissed by the Board.

2.  The applicant filed Form 86 for application for leave to apply for judicial review of the Board’s Decision.

3.  By Form CALL-1 dated 2 March 2022 (“the Court’s decision”), the Court dismissed his application. The deadline for him to file notice of appeal for appeal is 14 days after the Court’s decision.[1]

4.  The applicant filed a summons on 13 June 2022 together with his affirmation in support of his application for extension of time to file the notice of appeal.

5.  In his affirmation, he said that he changed his address but he did not know how to update the court’s record. Therefore, he did not receive the Court’s decision.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC^[2], 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. I shall consider the merits of the case.

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 applicant claimed that, if refouled, he would be harmed or killed by his creditor Dung because of his default in repaying the loan.

10.  The Director refused his claim for the reason that his claim was not substantiated. He appealed to the Board.

11.  The Board noticed that the applicant gave inconsistent accounts in relation to when and why he got the loans from the creditor [27]-[29] and thus it was unable to accept the applicant’s claim on the existence of the loan [30]. The Board also noted his inconsistencies with regard to when he started to default the loans [31]. Further, the Board found that the applicant failed to provide credible evidence as to the alleged assault and injuries [32]-[42]. In light of these unresolved inconsistencies, the Board refused to accept that the applicant was a credible witness. Even taking the applicant’s case to the highest, the Board found that state protection was available to him [43]-[46]. For these reasons, the Board rejected the applicant’s claim on all applicable grounds. In any event, the Board found that internal relocation was a viable option to the applicant [62]-[69]. Therefore, it dismissed the applicant’s appeal. The references refer to the Board’s Decision.

12.  The reason in the applicant’s affirmation is not good reasons from the application for the delay. He could have simply advised the court his new address by letter or personally attending the Registry. He has given no valid to challenge the Board’s Decision. Nor has he raised any valid reason to show that the Board or this Court is in error.

13.  There is therefore no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

14.  I refuse to extend time for him to file the notice of appeal. Accordingly, the application is dismissed.