Re Pham Tien Dung

HCAL 1503/2021

[2022] HKCFI 2392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1503 OF 2021

_____________

_____________

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

Date of Decision:  16 August 2022

_____________

D E C I S I O N

_____________

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 5 January 2022 (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 19 July 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he did not receive the Court’s decision. According to the court’s record, the Court’s decision was sent to his last known address on 5 January 2022.

Discussion

5.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.

6.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].”

7.I shall therefore consider the merits of his case. The applicant claimed that, if refouled, he would be harmed or killed by his creditor Dung.

8.By way of the Director’s Decision, the Director refused the applicant’s claim for the reason that his claim was not substantiated. The applicant appealed to the Board.

9.He was absent from the scheduled oral hearing on 6 December 2018 before the Board. Nor did he submit written explanation to the Board about his absence. Thus, the Board determined his appeal in his absence [70]-[75].

10.It found that the applicant’s claim was exaggerated, fabricated and contained discrepancies and inconsistences. Further, there was no state involvement as the applicant could apply for passport without difficulty [98]. Besides, it was the applicant’s own evidence that the money lender did not ask for repayment for more than a year [102]. Thus, even adopting the most generous interpretation, the Board still found the applicant a untruthful witness [103]-[107]. The references refer to the Board’s Decision.

11.It is clear that the Board dismissed his appeal as it did not accept the applicant’s facts in support of his claim. In the applicant’s affirmation in support of his application for extension of time to appeal, he had not set out any reasons to show that he has any reasonable prospect of success in his intended appeal.

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

The applicant was unrepresented.