Case Document

100%Judiciary

HCAL 123/2021

[2021] HKCFI 2366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 123 OF 2021

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RE:

NGUYEN CHI THANH

Applicant

_____________

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

Date of Decision: 30 August 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 Decision, 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 30 June 2021 (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 6 August 2021 applying for extension of time to appeal against the Court’s decision.

5.In his affirmation in support of his application, he said that he did not receive the Court’s decision. At the relevant time, he was being detained in the custody of the Immigration Department and he was unable to tell the court his new address.

Discussion

6.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.

7.In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

8.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].”

9.The Board had considered his appeal. By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. Having considered the applicant’s evidence, the Board at paragraph 39 of its Decision came to its conclusion that the applicant is a dishonest and unreliable witness and that there was no factual basis on which the Board could accept that he was subjected to any risk of harm in his home country. [40] There was no evidence to show that the state was involved or refused to render protection to him. [50 & 52] Also, internal relocation was an option open to him. [74]

10.I have also stated my views on the evidence, the Court’s decision as follows:

(1) The Board was entitled to take into consideration that the applicant did not seek protection immediately after he came to Hong Kong. He had taken more than 10 months to raise the claim, not until he was arrested for illegally working in Hong Kong. Section 37ZD (1) (b) of the Immigration Ordinance, Cap. 115.

(2) The fact that the applicant and his family were able to hide themselves from the creditor should not affect the applicant’s credibility on his evidence that he and his family were injured by the creditor and his people previously.

(3) The applicant’s oral evidence that the creditor only focused on him, not his family seems to be irrelevant to the fact that the creditor had harmed his family at home and the shop, the former being his opinion, the latter, the fact, which could have co-existed irrespective of the creditor’s intention.

(4) The Board is entitled to take the fact that they were able to avoid the creditor to discredit his allegation that internal relocation is not possible.

(5) The Board is also entitled to rely upon the country of origin information to refute his opinion that internal relocation is not possible.

(6) That fact that he had complained to police twice should not affect his credibility of the facts he alleged.

In any event, despite those reservations above, the Board was entitled to hold the view that the applicant came to Hong Kong illegally not for the purpose for seeking asylum, but for getting jobs instead. Even if the applicant’s facts were accepted, his claim on the risks fails as he should have state protection and that internal relocation should be an option open to him.

11.The applicant has not been able to put forth any valid ground to challenge the Board’s Decision or the Court’s decision.

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

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