Re v. Van Dat

HCAL 112/2022

[2022] HKCFI 3399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 112 OF 2022

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

Date of Decision:  18 November 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 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 Decisions, 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 Decisions.

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 10 May 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 20 October 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he asked for leave without stating any reasons for the delay.

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 24 May 2022 and the delay is about 5 months.  The applicant has not given any explanation for his delay. I shall, nevertheless, 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 the Vietnamese authorities.

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

10.The applicant did not attend an oral hearing before the Board. The Board took a preliminary view of the appeal. The Board accepted that as a returnee the applicant might experience some discrimination but there was no evidence suggesting that the denial of home registration was long term or that people with similar background as the applicant would be detained in re-education camp [62].  The Board also considered the COI in relation to homeless youth.  While it accepted that the homeless youth might encounter police harassment, the applicant was not a child and there was no indication of maltreatment, as alleged by the applicant, against the adults [63]-[68].  As a result, the Board refused to accept that the applicant suffered maltreatments due to his homeless status or that his homeless status would last for a long period [71].  Insofar as his new claim before the Board about his HIV status, the Board found that, while the applicant’s health condition might be plausible, there was no evidence about the current status of these conditions or what type of medical treatments he required [75].  The Board dismissed his appeal. The references refer to the Board’s Decision.

11.The applicant has failed to raise any valid reason 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.