RE CHAUHAN MANISH

HCAL 2787/2018

[2022] HKCFI 2420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 2787 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 by 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 August 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. The deadline for his to file his notice of appeal is within 14 days after the Court’s decision^[1].

4.  The applicant filed a summons on 14 July 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said he was not represented and he cannot afford a private lawyer himself.

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. 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 the family of his girlfriend because they opposed their relationship.

10.  The Director found that his claim was not substantiated. He appealed to the Board.

11.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that there were no substantial grounds for believing that he would be subjected to torture if he returned to India [38]; that he had received serious injuries that fulfilled the high threshold for BOR 3 risk [40]; that his case was related to BOR 2 risk [41]; that there was evidence that Persecution risk applied to his case [43]. The Board also found that internal relocation was an option open to him [50]. The references refer to the Board’s Decision.

12.  The applicant has no 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.

13.  There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for his to appeal and I dismiss his application.