Re Hoang Van Tien

HCAL 1118/2019

[2022] HKCFI 3146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1118 OF 2019

_____________

_____________

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

Date of Decision: 28 October 2022

_____________

D E C I S I O N

_____________

The application

1.The applicant is an illegal immigrant for staying in Hong Kong without permission 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, 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 23 June 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 against the Board’s Decision.

4.The applicant filed a summons on 3 October 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said, “I lost my Recognizance Form 8, so I could not take the oath and file the appeal. I had to apply to the Immigration Department for a new original Recognizance Form 8 and wait for the Immigration Department to issue a new Form 8. That also delayed filing an appeal to the court.”

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.The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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 deadline for appeal is on 7 July 2022 and the delay is about 3 months. I shall consider the merits of the case.

7.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].”

8.The applicant claimed that, if refouled, he would be harmed or killed by his creditor Bui Van Tung because he is unable to repay his debt.

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

10.Having considered the relevant country of origin information and the applicant’s evidence, the Board found that there was no evidence that the creditor had any intention of killing him; that his past treatment fell short of the mimimum level of severity under BOR 3 risk; that state protection would be available to him and that it was only a personal monetary dispute between himself and his creditor. Internal relocation was also found to be a viable alternative for him. For all those reasons, the Board dismissed his appeal.

11.The grounds in paragraph 4 are not valid reasons to show that there is any realistic 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.