RE CASTRO JAY PEE REYES

HCAL 2758/2018

[2021] HKCFI 3680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 2758 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 16 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 2 November 2021 for appeal against the Order out of time.

5.  In his affidavit in support of his application, he said that he did not receive the Court’s decision and he was not familiar with the judicial system in Hong Kong.  Therefore, he is out 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.

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.  I shall therefore first consider the merits of his intended appeal.

10.  The Board rejected his appeal and affirmed the Director’s Decision.  The Board accepted the applicant’s evidence on the facts in support of his claim. However, it affirmed the Director’s Decision for the reasons that the incident was a private dispute and the state was not involved [39]; that state protection would be available to him, thereby reducing the risk [40] and Torture risk was not established [43-46]; that whilst accepting that he might be subjected to BOR 3 risk if he returned to the Philippines, internal relocation in Metro Maila or Cebu would neutralize this risk [55-56]; that he failed to establish that his case fell within the protection of Persecution risk [65]; and that there was no ground to believe he would face a risk of being arbitrarily deprived of his life and BOR 2 risk did not apply [67].  References are in the Board’s Decision.

11.  The applicant has not been able to set out any valid challenge against the Board’s decisions.  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 dismiss his application.