LE VAN TRAO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1318/2019

[2024] HKCFI 1772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1318 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. However, he was late in making his application and he had given no explanation for his delay.

3.  By Order dated 29 April 2024 (“the Court’s decision”), the Court refused to extend time for him to make the application and dismissed his application for the reason that there is no realistic prospect of success in his intended application. The Court’s decision was sent to the applicant on 29 April 2024 without being returned by the Post Office. He was deemed to receive the Court’s decision.[1]

4.  The time for filing the notice of appeal expired on 13 May 2024.

5.  By summons filed on 14 May 2024, the applicant applied for appeal against the Court’s decision out of time. He is only 1 day out of time.

6.  In support of his application, the applicant filed an affirmation, in which he said he did not get the Court’s decision and he wanted to appeal.

Discussion

7.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper 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. I shall consider the merits of his case.

9.  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].”

10.  The applicant said that if refouled, he would be harmed or killed by his creditor Nguyen Van Ngoc due to an outstanding debt.

11.  The Director rejected his claim because it was not substantiated. He appealed to the Board.

12.  Having considered the evidence, the Board found that the applicant’s evidence was not credible and dismissed his appeal.

13.  There is no valid reason from the applicant to challenge the Board’s Decision.

14.  The applicant was late to file his application for leave to apply for judicial review of the Board’s Decision. Having found that the applicant had no valid reason to challenge the Board’s Decision, this Court refused to extend time for him to make his application and dismissed his application.

15.  There is no valid reason from the applicant to challenge the Court’s decision.

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