Re Doan Van Thai Cao Thi Huong

HCAL 1690/2018

[2021] HKCFI 720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1690 OF 2018 

_____________

_____________

Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Decision: 25 March 2021

_____________

D E C I S I O N

_____________

The application

1.The applicants are husband and wife. They lodged a non-refoulement claim with the Director of Immigration (“the Director”). By Notice of Decision dated 26 April 2017 (“the Director’s Decision”), the Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered their evidence, the Board, by its Decision dated 4 May 2018 (“the Board’s Decision”), rejected their appeal and confirmed the Director’s Decision.

2.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 Decision. They did not appear before the Court. The Court dealt with the application on paper.  By Order dated 12 May 2020 (“the Court’s decision”), the Court refused to grant them leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in their intended judicial review.

3.The applicants intend to appeal to the Court of Appeal against the Court’s decision. However, they are out of time under Order 53, rule 3(4) of the RHC. They filed a summons on 7 January 2021 for extension of time for their appeal.

4.They repeated the facts they alleged for their application for non-refoulement in their affirmation. They did not say that they did not receive the Court’s decision or that the decision was unreasonable.

Discussion

5.In Re Adumekwe Rowland Ejike [2019] §19, the Court of Appeal held that in order to determine whether time should be extended for the applicant to appeal the Court’s decision refusing leave to apply for judicial review to the Court of Appeal, the prospect of success of the intended appeal is important and the court will not grant extension of time for a hopeless appeal to be pursued and the applicant has to identify any error on the part of the Judge in refusing to grant him leave to apply for judicial review. [23]

6.The applicants said that if they returned to Vietnam, they would be harmed or killed by the creditor because they were unable to repay the loan.

7.The Board found as fact that they were unable to establish their claim on all the risks as set out in the Board’s Decision and that there would be state protection for them. Internal relocation was also open to them.

8.The Court found no fault in the Board’s finding of such facts.

9.The applicants have set out no valid ground in support of their application.

10.In the circumstances, I find that the applicants are unable to show that they have any reasonable prospect of success in their intended appeal against the Court’s decision. I refuse to extend time for their appeal. Accordingly, I dismiss their application.