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HCAL 1236/2019
[2024] HKCFI 1614
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1236 of 2019
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| BETWEEN |
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Chauhan Kaushal Kishor Prasad |
Applicant |
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and
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: |
26 June 2024 |
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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 20 December 2023 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application. The Court’s decision was sent to the applicant on 20 December 2023 without being returned by the Post Office.
4. The deadline for appeal is on 4 January 2024.
5. By summons filed on 17 April 2024, the applicant applied for appeal against the Court’s decision out of time. He is 3 months and 13 days out of time.
6. In support of his application, the applicant filed an affirmation, in which he set out the grounds below:
(1) He did not receive the Court’s decision within time.
(2) He obtained the Court’s decision subsequently. But he is unable to understand fully the reasons.
(3) He does not have any legal assistance to prepare for his application. He was unable to explain his case to the judge.
Discussion
7. Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing.
8. 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. I shall consider the merits of his case.
9. 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].”
10. The applicant said that if refouled, he would be harmed or killed by Amrika Parsad (“AP”) because he refused to sell his land to AP.
11. The Director rejected his claim because it was not substantiated. He appealed to the Board.
12. Having considered the evidence, the Board found that the applicant’s evidence was not credible, state protection would be available to him and internal relocation was viable.
13. As to his allegation of not receiving the Court’s decision, the Court sent the Courts’ decision to his last known address without return from the Post Office. The applicant is deemed to have received the Court’s decision.[1]
14. The second reason is not a valid reason because he is not entitled to free translation service at all times during the proceedings[2]. Ground 3 is not a valid point because he did not request a hearing before the Court, and if he appears before the Court, there will be a court interpreter to assist him.
15. There is no valid reason from the applicant to challenge the Board’s Decision.
16. In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant was not represented
[1] Under section 37 ZV of the Ordinance:
Notices
(1) A notice or other document (howsoever described) required to be served or given (howsoever described) by the Director, an immigration officer or the Appeal Board on or to another person under this Part may be served on or given to that other person—
(a) …;
(b) by leaving it for the person, or by sending it by post addressed to the person—
(i) if the person is a claimant, at the last known residential or correspondence address provided by the claimant
[2] The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:
“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”
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