Re Bui Van Toan

HCAL 2437/2018

[2021] HKCFI 1957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  2437 OF 2018

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

Date of Decision: 21 July 2021

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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”).  The Director, by his Decisions, 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 28 July 2020 (“the Court’s decision”), the Court dismissed his application for the reason that there was no reasonable prospect of success in his intended application.

4.The applicant filed a summons dated 25 August 2020 applying for extension of time to appeal against the Court’s decision.  The file was misplaced and the application has not been dealt with within the usual time.

5.In his affirmation in support of his application, he said that he did not receive the Court’s decision, but he did not change his address.  He considered that he had good grounds and merits for his appeal, but such good grounds are not to be considered by the Court at this stage.

Discussion

6.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

7.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].”

8.The Board considered the applicant’s evidence and found that the applicant had not sought protection from the state.  From the country of origin information, Vietnamese government has the determination and power to combat triad loan-shark activities.  He had failed to prove with evidence that the loan-shark had burned down his house.  Therefore, he had not discharged the burden of proof on the risks he had raised.  See §§41-69 of the Board’s Decision.  Further, it found that internal relocation was an option open to him [72-78].  The references in brackets are those in the Board’s Decision.

9.The applicant’s grounds above do not assist his application.  The applicant has not been able to say in what respect had the Board erred in its Decision.

10.He is unable to show that he has any reasonable prospect of success in his intended appeal.

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

The applicant was unrepresented.