RE MANJEET SINGH

HCAL 1307/2018

[2021] HKCFI 2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  1307 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 rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”).  He was late in filing his Notice of Appeal.  The Board, having considered his reason of being late and the merits of his case, refused to extend time for him to file his Notice of Appeal.  In effect, the Board dismissed his appeal.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 dated 6 July 2018 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Order dated 26 March 2021 (“the Court’s decision”), the Court dismissed his application for the reason that the applicant had no reasonable prospect of success in his intended judicial review.

4.  The applicant filed a summons dated 14 May 2021 applying for extension of time to appeal against the Court’s decision.

5.  In his affirmation in support of his application, he said that he was not satisfied with the Court’s decision.  He did not set out any specific ground in support of his application.

Discussion

6.  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.

7.  The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, [27(3)] and Nupur Mst v Director of Immigration [2018] HKCA 524 [15] that extension of time for making the application for leave to apply for judicial review, the Court has to consider 4 factors: length of delay, reasons for delay, merits of substantive application and prejudice to respondent.  I shall consider the merits of the substantial application.

8.  The applicant was late in filing his Notice of Appeal with the Board.  The Board had considered his late filing, but did not dismiss his Notice of Appeal on this ground alone.  It went further to consider the merits of the applicant’s case and concluded that his case was not within the ambit of any of the non-refoulement claims for the reasons below.

 (1)  He had never been harmed by the Pakistani Army stationed at the India-Pakistan border. He had not even been touched by the Pakistani Army.

 (2)  None of the incidents he described showed that he was physically or mentally harmed.

 (3)  His fear was only because of the conflicting India-Pakistan situation at the Chamrail border which had long been antagonizing each other.

 (4)  The conflict at the Chamrail border was only between the Indian and Pakistani Army and had nothing to do with him. His fear, if any, does not fall within the definition of persecution.

 (5)  The Board went further to consider his grounds of appeal and found that it was only a repetition of his case and there was no substance in it.

9.  In his affirmation in support of his application for leave to apply for judicial review, he said that he could not go back to his own country because it was unsafe.

10.  In the circumstances, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against the Court’s decision.  I refuse to extend time for his appeal.  Accordingly, I dismiss his application.