RE BUI VAN TOAN

HCAL 1197/2021

[2022] HKCFI 424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1197 OF 2021

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D E C I S I O N

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The application

1.  The applicant is applying for extension of time to appeal against this Court’s decision rejecting leave for him to apply for judicial review in respect of his subsequent claim.

2.  The applicant is an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). Having considered his evidence, the Board, by its Decision, rejected his appeal and affirmed the Director’s Decision.

3.  He returned to Vietnam and he came back to Hong Kong again. He applied to the Director for a subsequent claim under section 37 ZO (1) & (2) of the Ordinance.

4.  In his subsequent claim, the applicant stated that he borrowed money from Doan and Binh respectively in 2019 and 2020 when he returned to Vietnam. Again, he defaulted both payments because of his business failures. He claimed to be beaten by the local police and sustained injuries.

5.  Having considered his statement, the Director found that there was no significant change of circumstances since his previous claim was determined, which would give a realist prospect of success to his subsequent claim and rejected his subsequent claim (the “Director’s Decision”).

6.  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 Director’s Decision.

7.  By Form CALL-1 dated 3 January 2022 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review application.

8.  The applicant filed a summons on 21 January 2022 for appeal against the Court’s decision out of time.

9.  In his affirmation in support of his application, he said he did not receive the court’s letter with the Court’s decision within time and he could not explain why. However, the delay is only 4 days.

Discussion

10.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

11.  The Court has to 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 first consider the merits of the applicant’s case.

12.  The Court decision was sent to his last known address on 5 January 2022. It has not been returned undelivered.

13.  The Court had considered his grounds in support of his application for leave to apply for judicial review of the Director’s Decision, and for the reasons given, found that his intended application for judicial review did not have any realistic chance of success.

14.  The applicant is unable to set out any valid ground to challenge the Director’s Decision. Nor can he point out any error on the part of this Court in the assessment of his application.

15.  There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for him to appeal. Accordingly, I dismiss his application.