RE BALJINDER SINGH

HCAL 1895/2018

[2022] HKCFI 193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST ACTION NO 1895 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 overstaying 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 16 December 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 6 January 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said:

“… I did not get the High Court judgment”

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.  The delay of 16 days is significant.   Form CALL-1 was sent to his last known address on the same day of the Order. Nevertheless, 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 ill-treated or killed by his creditor Mahinder Singh and his men.

10.  The Director found that the level of risk of him being harmed or killed by his creditor upon refoulement was assessed to be low; that state protection was available to him and that internal relocation was an option open to him.

11.  By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal. The Board considered the applicant’s evidence and for the reasons set out in its Decision, it found that of the facts in support of the claimant’s claim, it did not accept that the debt had been fully paid [124]. Although it accepted that the applicant was assaulted by the creditor and his people on two occasions and he had suffered injuries as alleged, it considered that the state was not involved [139]; that he failed to establish that state protection was not available to him [142] and internal relocation is reasonable and practicable [144-161]. See the Board’s Decision.

12.  The applicant is unable to set out any 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 him to appeal and dismiss his application.