RE SANTOS RENATO MANALO

HCAL 1050/2019

[2022] HKCFI 3020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1050 OF 2019

_____________

_____________

_______________

D E C I S I O N

_______________

The application

1.  The applicant is an illegal immigrant for staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decisions, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). Having considered his evidence, the Board, by its Decisions (the “Board’s Decision”), rejected his appeal and affirmed the Director’s Decisions.

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 Second Decision.

3.  By Form CALL-1 dated 3 August 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.

4.  The applicant filed a summons on 19 September 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he explained that he is late because his landlord had kept the key of the letter box.

Discussion

5.  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.

6.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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 deadline for appeal is 17 August 2022 and the delay is about 3 weeks. I shall, nevertheless, first consider the merits of the case.

7.  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].”

8.  The applicant claimed that, if refouled, he would be harmed or killed by some unknown men since he witnessed a murder.

9.  By way of the Director’s First Decision dated 31 March 2015, the Director refused the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. By the Director’s Second Decision dated 2 May 2017, the Director refused the applicant’s claim on BOR 2 risk. The applicant appealed to the Board against the Director’s Decisions.

10.  Having considered all the evidence, The Board found that the alleged unknown men had no real intention to harm or kill the applicant as they had ample opportunities to inflict harm but chose not to [17]. It also noted that they should have known that the applicant or his family no longer resided in that house [18]-[19]. Thus, the applicant’s evidence on this aspect was not credible. The applicant’s evidence on whether he reported the matter to the police was inconsistent [20]-[21]. Further, the certificate from the police station did not support the applicant’s contention [22]-[29]. Further, the Board noted that the messages were merely empty death threats [31]-[32]; that state protection would be available to him [34]-[37]; that internal relocation was also a viable option [38]-[41]. Thus, in the decision dated 15 March 2017, the Board rejected the applicant’s claim and dismissed his appeal (the “Board’s First Decision”). The references refer to the Board’s First Decision.

11.  It is clear that the Board dismissed his appeal with the reasons above. In the applicant’s affirmation in support of his application for extension of time to appeal, he had not set out any reason to show that he has any reasonable prospect of success in his intended appeal.

12.  In the circumstances, I refuse to extend time for the applicant to file his notice of appeal. Accordingly, I dismiss his application.