DAM TUAN ANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1682/2021

[2024] HKCFI 1311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1682 OF 2021

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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.

3.  By Order dated 9 January 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. The Court’s decision was sent to the applicant on 9 January 2024 without being returned by the Post Office.

4.  The deadline for appeal is on 24 January 2024.

5.  By summons filed on 1 March 2024, the applicant applied for appeal the Court’s decision out of time. He is about 5 weeks out of time.

6.  In support of his application, the applicant filed an affirmation, in which he said that the Court’s decision is unfair because he was not given adequate opportunity to clarify his case and present a full text of his situation in his country. He further said that he cannot afford a lawyer to act for him and he had no legal advice to file the appeal within time as he is being detained.

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 because he was unable to repay his 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 his evidence on the facts of his case was incredible. The Board further found that state protection would be available to him if he returns to his country. For those reasons, the Board dismissed his appeal.

13.  As to the grounds raised in paragraph 6, the applicant attended the hearing on 20 November 2023. If he relies upon his lack of legal representation for his delay, he is not entitled to free legal representation at the time as he was legally represented at the screening stage. The applicant has not raised any valid ground to challenge the Board’s Decision.

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