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HCAL 2791/2018

[2021] HKCFI 3597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2791 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 30 July 2021 (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 19 November 2021 for appeal against the Order out of time.

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

“… I did not know [the court’s decision] until 18/11/2021. I therefore wish to appeal for reconsideration of my case to be reviewed.”

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 is significant and serious.  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 or killed by Udoka because he witnessed him involved in a murder case, the deceased was Eze. Udoka and Eze were shareholders in the company in which he served.  Udoka and his people were looking for him in order to silence him as a witness of the murder case.  He had to live in various places in avoid Udoka.  In October 2014, he left Nigeria for Hong Kong.  In November 2014, his friend in Nigeria told him that his wife and son were shot dead.  He suspected that Udoka and his people killed them.  He also said that he feared Boko Haram terrorists caused instability in his country and the government were unable to provide him with protection.

10.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The adjudicator had cross examined the applicant’s evidence in details.  After careful analysis, the adjudicator found that his evidence in relation to the murder scene and Udoka chasing him in order to silence him as a witness were fabrications; that there was no evidence that there was a substantial or real risk that he would be targeted for harm for the reasons he claimed or for any other reason, not least that he would have such risk in the future.  In a nutshell, the Board rejected his facts in support of his claim.  See paragraphs 63-105 of the Board’s Decision.

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.