Re Tran Van Nhanh

HCAL 2584/2019

[2021] HKCFI 1279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2584 OF 2018 

_____________

_____________

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

Date of Decision: 17 May 2021

_____________

D E C I S I O N

_____________

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 Decisions respectively dated 29 January 2016 and 3 March 2017 (“the Director’s Decisions”), the Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decisions respectively dated 13 October 2016 and 15 July 2019 (“the Board’s Decisions”), rejected his appeal and affirmed the Director’s Decisions.

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 Decisions. By Order dated 23 March 2021 (“the Court’s decision”), the Court refused to grant him leave to apply for judicial review of the Board’s Decisions 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 14 April 2021 for extension of time for his appeal.

4.In his affirmation in support of his application, the applicant said that he did not understand English and he did not have legal advice on the 14 days’ limitation period for appeal. He further said there is good ground of appeal that is not necessarily considered at the stage of apply for leave for judicial review.

Discussion

5.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.

6.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].”

7.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.

8.The Board accepted the applicant’s facts. However, it disagreed with the applicant on the risk of harm he would face flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection. See paragraph 17 of the Court’s decision. The Court agreed with the Board’s views that the alleged risk of harm by the applicant at the hands of the police is far-fetched, fanciful and not real. [21]

9.The Court had noted that there was no challenge with regard to procedural regularity and fairness. [24]

10.The Court had considered the Board’s Decisions and found that they were without fault.

11.The applicant has no valid reason in support of his application.

12.In the circumstances, I find that the 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.