Re v. Van Minh

HCAL 2514/2018

[2022] HKCFI 3581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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

Date of Decision: 15 December 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 by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director 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 Order dated 13 October 2022 (“the Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.The applicant filed a summons on 7 November 2022 applying for extension of time to appeal against the Court’s decision. In his affirmation in support of his application he said:

“Because I received the letter from the court late, when I received the letter, the deadline for me to appeal has passed. Moreover, because I can’t speak English or Chinese, I can’t go to court to file my appeal, and I have to ask for help from friends. When my friends have free time, they can take me to the High Court and file the appeal.”

Discussion

5.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, 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 his appeal is 27 October 2022. The applicant is late for 11 days. I shall consider the merits of his 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 as he is unable to repay the loan.

9.The Director refused his application because his claim was unsubstantiated. He appealed to the Board.

10.Having considered the applicant’s evidence, the Board dismissed his appeal as they were unconvincing as his evidence on the industrial accident and the loan was vague and contradictory. Even though his evidence that the creditor had gone to his house in Vietnam for repayment of the loan, the fact remains that the creditor did not torture him. Also, there is no evidence to show that the state was involved in the loan business and the applicant should have state protection. Internal relocation is also a viable option for him. On those reasons, the Board dismissed his appeal.

11.The applicant has raised no valid reason to show that he has a realistic prospect of success in his intended appeal.

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

The applicant was unrepresented.