LE DUC HUU AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1896/2019

[2024] HKCFI 3413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1896 OF 2019

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D E C I S I O N

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1.  The 1^st applicant and the 2^nd applicant are husband and wife and the 3^rd and the 4^th applicants are their children, respectively aged 16 and 2 (“the children”).

2.  The applicants are an illegal immigrants by staying in Hong Kong without permission and they lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered their evidence, the Board, by its Decisions (“the Board’s Decisions”), rejected their appeal and affirmed the Director’s Decisions.

3.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decisions.

4.  The 2^nd applicant and 3^rd and 4^th applicants, her children, had withdrawn their claim for non-refoulement and had returned to Vietnam. The 1^st applicant insisted on his non-refoulement claim.

5.  By Order dated 22 October 2024 (“the Court’s decision”), the Court dismissed the 1^st applicant’s application for the reason that there was no realistic prospect of success in his intended application.

6.  The Court’s decision was sent to the 1^st applicant on 22 October 2024 without being returned by the Post Office. He is deemed to receive the Court’s decision.[1]

7.  The deadline for them to file his notice of appeal is 5 November 2024.

8.  In his summons filed on 7 November 2024, the 1^st applicant asked for extension of time to file his notice of appeal. In the 1^st applicant’s affirmation in support of his application, the 1^st applicant said he did not speak Chinese and Cantonese, so he does not know how to file an appeal to the Court of Appeal. He had to ask some friends to help him when they had free time.

9.  His application for appeal is late for only 2 days.

Discussion

10.  Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[2].

11.  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.

12.  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].”

13.  The 1^st applicant claimed that if refouled, he will be harmed or even killed by his creditor because he is unable to repay his loan. He also claimed that he will be persecuted by the principal of the college which he had previously worked for.

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

15.  Having considered the evidence, the Board accepted the alleged facts, but it took the view that such facts did not meet the requirement under the law and the Convention. Besides, state protection would be available to him and internal relocation is also viable. Thus, it dismissed the applicant’s appeal.

16.  There is no valid reason from the applicant to challenge the Board’s Decision. It is trite law that the Court should not interfere with the Board’s findings without good reason.

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

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