Re Nguyen Van Phong and Others

HCAL 1933/2018

[2021] HKCFI 722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1933 OF 2018

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

Date of Decision: 25 March 2021

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D E C I S I O N

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The application

1.There are five applicants of a family in this matter and this application was taken out by the 1^st applicant on their behalf. The applicants are illegal immigrants and they jointly lodged a non-refoulement claim with the Director of Immigration (“the Director”). By the Director’s Decision and the Director’s Further Decision respectively dated 9 August 2016 and 11 July 2107 (“the Director’s Decisions”), the Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision dated 27 August 2018 (“the Board’s Decision”), rejected their appeal and confirmed the Director’s Decisions.

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. On behalf of the family, the 1^st applicant had appeared before the Court. By Order dated 5 August 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. The 1^st applicant, on behalf of the family, filed a summons on 21 December 2020 for extension of time for their appeal.

4.The 1^st applicant’s grounds in support of his application repeated what he told the immigration officer the reasons he fled Vietnam and came to Hong Kong. He did not say that he 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. Also, the applicant has to identify the error on the part of the Judge in refusing to grant him leave to apply for judicial review. [23]

6.The applicant’s grounds in support of his application is that if the family returned to Vietnam, they would be harmed or killed by people from the Local Authority and a private company called Dai Duong Company in Vietnam because of a business dispute with them. The 1^st applicant was also afraid of being arrested by police of Vietnam on a fabricated charge. He raised the issue of whether it was fair for the Board to have come to its decision in court.

7.The first applicant appeared before me and confirmed that he had had a fair interview with the immigration officer. However, he said that he did not have a fair hearing before the Board because he had made an application to the Adjudicator for an adjournment on the reason that his wife and mother-in-law were not feeling well and their evidence might not be accurate. He did not have any medical evidence in support of his application. The Adjudicator refused his application for adjournment and proceeded with the hearing.

8.In my decision, I have given the reasons for refusing his application as follows:

(1)  he has not raised this ground in his affirmation in support of this application;

(2)  the Adjudicator’s decision of refusing the application for adjournment cannot be faulted because the applicant had produced no medical evidence in support of his application and he was unable to anticipate what questions the Adjudicator would put to his wife and his mother-in-law; and

(3)  it turned out that there were many inconsistencies in their evidence that the Board attached no weight to their evidence.

9.The 1^st applicant has not set out any valid ground in support of his application.

10.The Court had considered the Board’s Decision and found that it was without fault.

11.In the circumstances, I find that the 1^st applicant is unable to show that he has any reasonable prospect of success in his intended appeal against the Court’s decision. I refuse to extend time for his appeal. Accordingly, I dismiss his application.