Pham Van Dung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2593/2019

[2025] HKCFI 4734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2593 OF 2019

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BETWEEN

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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 Judgment dated 22 April 2025 (“the Judgment”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application.  

4.The Judgment was sent to the applicant on 22 April 2025 at his last known address without being returned from the Post Office.  He is deemed to receive the Judgment[1]. 

5.The time for filing the notice of appeal expired on 6 May 2025[2].

6.By summons filed on 21 August 2025, the applicant applied for appeal against the Court’s decision out of time. He is late for three and a half months. 

7.In his affirmation support of his application, the applicant said that was not aware that his application had been dismissed by the Court. 

Discussion

8.Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3)  of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[3]. 

9.The Court will 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.  I shall consider the merits of his case. 

10.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].”

11.The applicant claimed that if refouled, he will be harmed or killed by police of Vietnam because he had accused the police of having killed his friend in Vietnam. 

12.The Director rejected his claim because it was not substantiated.  He appealed to the Board. 

13.Having considered the evidence, the Board dismissed his appeal for the reason that the applicant failed to establish that he will be subjected to the applicable risks if he returns to Vietnam. 

14.Those reasons under paragraph 7 are not valid for his delay. 

15.There is no valid reason from the applicant to challenge the Board’s Decision or the Judgment. 

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

The applicant was unrepresented.