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HCAL 1158/2022
[2024] HKCFI 1584
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1158 OF 2022
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BETWEEN
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Hoang Gia Hieu |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: |
26 July 2024 |
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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.
3. By Order dated 28 March 2024 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application.
4. The Court’s decision was sent to the applicant on 28 March 2024 without being returned by the Post Office. He was deemed to receive the Court’s decision.[1]
5. The time for filing the notice of appeal expired on 12 April 2024.
6. By summons filed on 4 June 2024, the applicant applied for appeal against the Court’s decision out of time. He is about 1 month and 3 weeks out of time.
7. In support of his application, the applicant filed an affirmation, in which he said he did not receive the Court’s decision and he did not know how to appeal.
Discussion
8. 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.
9. 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.
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 said that if refouled, he would be harmed or killed by his creditor due to an outstanding debt.
12. The Director rejected his claim because it was not substantiated. He appealed to the Board.
13. Having considered the evidence, the Board found that the applicant had fabricated his claim and rejected his evidence in entirety.
14. There is no valid reason from the applicant to challenge the Board’s Decision.
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.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant was unrepresented.
[1] Re: Ravinder Singh [2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023
“17. … According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post. He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday. …”
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