DO HUNG LOI 對 酷刑聲請上訴委員會／免遣返聲請呈請辦事處 [Decision on Leave Application]

HCAL 1789/2018

[2021] HKCFI 3721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1789 OF 2018

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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 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 23 July 2020 (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 18 August 2020 for appeal against the Order out of time.

5.  In his affirmation in support of his application, he said:

“… I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review… I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal our of time….”

Discussion

6.  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.

7.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (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 delay of over 15 months is, of course, serious in this case. Nevertheless, I shall consider the merits of the case.

8.  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].”

9.  The applicant claimed that if refouled, he would be harmed by the creditor because he was unable to repay his debt.

10.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board found that the incidents were personal business, nothing to do with the state; that the incidents did not fall within the category of torture; that the applicant could have state protection; that the indicents did not fall within the ambit of the Convention and that internal relocation was an option open to the applicant.

11.  The applicant has not been able to set out any valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of this Court in the assessment of his application.

12.  There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for him to appeal and dismiss his application.