RE CELSO NOEL ABENOJAR

HCAL 456/2019

[2021] HKCFI 2718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 456 OF 2019

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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 Order dated 26 January 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons dated 24 March 2021 applying for extension of time to appeal against the Court’s decision.

5.  In his affidavit in support of his application, he said that the Court had disregarded his dangerous situation.

6.  The Court had given directions that the applicant should submit documentary evidence to show the service of the Court’s decision and his grounds of appeal. The matter will, however, proceed even if the applicant does not provide the information as required. The applicant has not submitted the information as required. I shall now consider his application.

Discussion

7.  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.

8.  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.

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.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board found that he had fabricated his claim after he was arrested by police. Although the Board accepted that his wife discovered that he was having an affair and her family might have threatened him, it did not believe that they would still go to his sister’s home to look for him. Also, the Board found that internal relocation was an option open to him.

11.  The Court, having examined the Board’s decision, considered that he had advanced no valid grounds for his application and concluded that he had no realistic prospect of success in the proposed judicial review.

12.  The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error. He is therefore unable to show that he has any realistic prospect of success in his intended appeal.

13.  In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.