Re Bui Quy Tan

HCAL 1853/2018

[2021] HKCFI 728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1853 OF 2018

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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 and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). By Notice of Decision dated 8 February 2017 (“the Director’s Decision”), 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 dated 9 February 2018 (“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. He had appeared before the Court. By Order dated 27 May 2020 (“the Court’s decision”), the Court refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

3.The applicant intends to appeal to the Court of Appeal against the Court’s decision. However, he is out of time under Order 53, rule 3(4) of the RHC. He filed a summons on 19 February 2021 for extension of time for his appeal.

4.He set out his grounds in support of this application as follows:

(1) he never receives the Court’s decision;

(2) he should have good ground of appeal, which is not necessary to be considered at this stage; and

(3) he considered that the merits of his case should constitute sufficient reason for the court to exercise its discretion to extend time for his appeal.

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 Court had in its decision, set out the reasons why it refused to grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant’s grounds in support of his application is that if he returns to Vietnam, he would be harmed or killed by his creditor because he was unable to repay the loan.

7.The Board found that he had failed to make out his case that he had borrow any money from the creditor; that he was ever threatened or harmed by the creditor and that he would be at risk of harm from his creditor or his associates if he returned to Vietnam. See §§27-32 of the Board’s Decision.

8.The Court had considered the grounds for his application for leave to apply for judicial review and dealt with them in its decision.

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

10.His grounds for this application are not valid. He has to set out his reasons at this stage for the court’s consideration. There is no merit in his case. Even if he really had not received the Court’s decision, he should not be given extension of time because he has no reasonable prospect of success in his appeal.

11.Accordingly, I dismiss his application.