Re Dinh Khac Phi

HCAL 893/2018

[2022] HKCFI 299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 893 OF 2018

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

Date of Decision: 21 January 2022

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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 17 November 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 21 December 2021 for appeal against the Court’s decision out of time.

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

“… I have not received any letter, Order or Judgment from the Court … The Decision made by the High Court has been reached unfairly without allowing us 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 about 8 days is not 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 Nguyen Van Pha (“Pha”) and MI for not repaying the debts.

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 [12]-[15]; that there was no evidence to show that the state was involved and therefore state protection would be available to him [16]-[20] and that internal relocation was an option open to him [21]-[25]. See the Director’s Decision.

11.He appealed to the Board. The Board found that, even on the applicant’s own evidence, the threats from Pha and MI were purely verbal without any physical harms inflicted on the applicant. Further, the disputes were monetary in nature without any issues on race, religion, nationality, social group or political views. Also, the applicant had never sought help from the law enforcements or the government. His family and him were never subject to any harms from the authorities. It was misconceived to argue that he would not have state protection. Thus, the applicant’s claim on Persecution risk failed [24]-[35]. For the same reasons, his claims on BOR 3 risk, Torture risk and BOR 2 risk also failed [36]-[45]. In any event, internal relocation was available to him, for instance, he had once stayed in Thành phố Móng Cái, another city in Vietnam, without being located by his creditors [46]-[48]. As a result, the Board dismissed his appeal. See the Board’s Decision.

12.According to the court’s record, the Court’s decision was sent to the applicant’s last known address. The applicant did not request an oral hearing. According to the law, his application can be disposed of on paper without a hearing.

13.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.

14.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