Case Document

100%Judiciary

HCAL 446/2021

[2021] HKCFI 3651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 446 OF 2021

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RE:

NGO VAN NAM

Applicant

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

Date of Decision: 14 December 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 Form CALL-1 dated 29 July 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review.

4.The applicant sent a summons dated 10 September 2021 to Court which was received on 29 November 2021 for appeal against the Order out of time.

5.In his affirmation in support of his application, he said:

“… I only received the decision on 21 August …. I cannot go back to my country Vietnam because my life is still in danger.”

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. The Court’s decision was issued on 29 July and re-sent to him on 18 August 2021. The applicant said that he received the Court’s decision on 21 August 2021. Yet, he did not file his application for extension of time within 14 days after he received the Court’s decision. Nevertheless, I shall consider the merits of the case.

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 applicant claimed that if refouled, he would be harmed by the creditor and the drug traffickers and he would also be arrested by police. The Director rejected his claim and he appealed to the Board.

10.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board had conducted a rather protracted cross-examination of his evidence at the hearing. It came to the conclusion that because of the inconsistencies, contradictions, implausibility, incredibility and impossibilities, it dismissed his evidence as made-up story only [212-213]. The Board found that there were no threats from the Public Security, the creditor or the drug traffickers and there was no debt from the creditor. In a nutshell, the Board rejected his evidence of the facts of his case. However, the Board further found that state protection was available to him [245-250] and internal relocation was an option open to him [251-267]. His claim on all the risks above failed.

11.The applicant has not been able to set out any valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of this Court in the assessment of his application.

12.There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for him to appeal and dismiss his application.