Case Document

100%Judiciary

HCAL 1689/2018

[2021] HKCFI 2063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1689 OF 2018

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RE:

BUI VAN TUYEN

Applicant

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

Date of Decision: 29 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 Decisions (the “Board’s Decision”), 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 Decision.

3.By Order dated 23 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 3 September 2020 applying for extension of time to appeal against the Court’s decision. The file was misplaced and the application was therefore unable to be dealt with within the usual time.

5.In his affirmation in support of his application, he had set out the following grounds:

(i) Subjective decisions

(1) The Board’s decision at para. 62 had ignored the fact that the creditor had threatened to kill him and that those people are triad members.

(2) The Board had not taken into consideration that he was seriously wounded by the creditor.

(3) The Board should not conclude that he would not be harmed or subjected to future risks if he returned to Vietnam.

(4) The Court had made the same mistake by ignoring the above factors.

(ii) The Board did not understand the corruption in Vietnam

(1) Corruption is serious in Vietnam as can be seen from the website of Sino News on 23 June 2006 reporting that the Prime Minister there resigned because he was unable to control corruption in Vietnam.

(2) The Board did not take note of the above. Nor did the Court.

(iii) No medical examination report

(1) The Board did not doubt the immigration officer, who had rejected his request for medical examination and it came to its conclusion that his injuries did not reach the minimum threshold, which is unreasonable and unprofessional assessment.

(2) The Court made the same mistake by agreeing with the Board.

(iv) Reason for delay – because of COVID-19 and delay in receiving the Court’s decision.

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 consideredthe applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusions that there was no evidence to prove that the treatments that he had received amounted to the minimum level of severity as required under the law and that there was no evidence to show that he would be subjected to the risks as he alleged if he returned to Vietnam.

9.The applicant did not raise those grounds in this application in support of his application. It is inappropriate for him to raise them here for extension of time application because the Court has already made its decisions in accordance with the evidence and submissions before it.

10.Even if those grounds were taken into consideration, they do not assist his application for leave to apply for judicial review of the Board’s Decision.

11.Grounds (1) and (2) are only his opinions and comments. Ground (3) was not raised in the Board’s Decision. He could have obtained his own medical report. However, since it had been a rather long time after the injuries, it would be unrealistic to rely upon such medical report. He has the burden of proof himself and he was legally represented when he appeared before the immigration officer. He could have asked his lawyer to make the arrangement for him.

12.The Court of Appeal in Bah Mohamed Bachir v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and Director of Immigration [2019] HKCA 462, 18 April 2019 held that the Board is the determiner of the facts in paragraph 8, supra.

13.The applicant is unable to show that he has any reasonable prospect of success in his intended appeal.

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