RE QUINTERO CORREA JHON EDUAR

HCAL 908/2019

[2022] HKCFI 1847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 908 OF 2019

_____________

_____________

_______________

D E C I S I O N

_______________

The application

1.  The applicant is an illegal immigrant for remaining in Hong Kong without permission 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 3 May 2022 (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. The deadline for him to file his notice of appeal is 18 May 2022 (within 14 days after such order).

4.  The applicant filed a summons on 26 May 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said he was late because his family had contracted COVID-19 virus and it took time for them to be isolated and to recover.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC[1], 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.

8.  I shall, nevertheless, consider the merits of his intended appeal.

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 claimed that if refouled, he would be harmed or killed by Carlos Andres Colorado Echeverri (“Carlos”).

11.  By the Director Decision, the Director refused his claim for the reason that his claim was not substantiated. He appealed to the Board. He asked the Board to determine his appeal without an oral hearing. The Board acceded to his request.

12.  The Board found that Carlos did not act on behalf of the State [7]-[9]. Nor did the alleged injuries sustained by the applicant attain the level of severity [10]-[13]. Further, the Board considered country of origin information and concluded that internal relocation was a viable alternative to the applicant [14]-[18]. In addition, the Board also noted that the applicant did not encounter hostility for over 4 years in another city in Colombia but still chose to escape to Hong Kong. This also indicated that the applicant was not genuine in seeking protection [31]. The references refer to the Board’s Decision.

13.  The applicant is unable to raise any valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of the Court in the assessment of his application.

14.  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.