Re Do Tuan Anh

HCAL 202/2021

[2022] HKCFI 71

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 202 OF 2021

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D E C I S I O N

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The application

1.The 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 20 September 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 filed a summons on 13 December 2021 for appeal against the Court’s decision out of time.

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

“Because the order dated 20 September 2021 was written in English, I did not understand English, and I did not know if there was a deadline for filing an appeal at that time. I needed detailed analysis and asked friends who know how to appeal help me …The Decision …has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country.”

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 delay of more than two months is significant and serious. 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 or killed by his creditor, from whom he had borrowed 1400 million Vietnamese currency for gambling. He lost and was unable to repay his debt.

10.The Director found that the level of risk of him being harmed or killed if he returned to Vietnam was assessed to be low [11]; that state protection was available to him [17] and that internal relocation was an option open to him [22]. See the Director’s Decision.

11.The Board agreed with the Director. The Board further found that his case was a private monetary dispute, which the state was not involved [55]. His case did not involve the BOR 2 risk [59]. See the Board’s Decision.

12.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.

13.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.

The applicant was unrepresented