VU VAN TUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 970/2019

[2024] HKCFI 612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 970 OF 2019

_____________

BETWEEN

_____________

_____________

D E C I S I O N

_____________

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.

3.  By Order dated 20 July 2023 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application. The deadline for appeal is on 4 August 2023.

4.  By summons filed on 22 December 2023, the applicant applied for appeal the Court’s decision out of time. He is therefore about 4 and a half months out of time.

5.  The applicant submits that there is good ground of appeal, but it is not necessary to consider it at this stage.

Discussion

6.  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.

7.  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.

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 said that if refouled, he would be harmed or killed by his creditors because he was unable to repay his debts.

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

11.  Having considered the evidence, the Board found that his intention to seek protection in Hong Kong was suspicious. The Board further found that the alleged injuries failed to attain a minimum level of severity. Further, there was no evidence that the Vietnamese government had any adverse interest against the applicant. For those reasons, the Board dismissed his appeal.

12.  It is not correct that the court should not consider the merits of his case for this application. The contrary is true.

13.  The applicant has not raised any valid reason to challenge the Board’s Decision. He therefore fails to show that there is a reasonable prospect of success in his intended appeal.

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