Case Document

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HCAL 47/2021

[2021] HKCFI 2649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 47 OF 2021

_____________

RE:

NGO QUANG DUC

Applicant

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

Date of Hearing: 3 September 2021

Date of Decision: 21 September 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 20 May 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.The applicant filed an undated summons received by court on 22 July 2021, in which he applied for “judicial review summons because he does not agree with the decision of the Immigration Department and the Torture Claim Appeal Board and Judicial Review Form 86”. He further said that he cannot go back to his home country because his life is still in danger over there.

5.His summons is unclear. The Court has therefore directed that he should clarify his intention. At the hearing, he said that he is being detained by the Immigration Department at its detention centre. He does not understand English. He asked his friend to prepare the summons for him. He wants to appeal the Court’s decision. He is now out of time. Therefore, he asks the Court to extend time for him to do so. He further said that he has been detained for a long time and he hopes the Court can deal with his application quickly or grant him bail.

6.In his affirmation in support of his application, he repeated what he had put down in his summons as mentioned above.

Discussion

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.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that his evidence was incoherent and contradictory and that his conduct of commission of crimes in Hong Kong was inconsistent with his purpose of seeking non-refoulement protection [22]; that state protection is available to him upon his return to Vietnam [28]; that there was no state involvement [31]; that there is no real risk of torture upon his return to Vietnam [33]; that he fails to establish his risk under BOR 2 risk [38]; that his case does not fall within the protection of Persecution risk and that internal relocation is an option open to him [52].

10.The Court, having examined the Board’s decision, agreed that the Board’s Decision was without fault.

11.The applicant has not raised any valid ground to say that the Board was in error in arriving at its Decision or the Court was in error in coming to its decision. He is therefore unable to show that he has any realistic prospect of success in his intended appeal.

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