RE ROVIN

HCAL 1490/2018

[2022] HKCFI 1888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1490 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 Decisions, 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 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 Decision.

3.  By Form CALL-1 dated 17 February 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. The deadline for him to file his notice of appeal is 4 March 2022 (within 14 days after such order).

4.  The applicant filed a summons on 31 May 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said he did not get the Court’s decision. However, he did not explain how he had knowledge about the Court’s decision before he made this application.

6.  The Court’s Form CALL-1 was sent to the applicant’s last known address. Pursuant to Order 65, rules 5 (2)(b) and 7(2) of the RHC, it is deemed to be served on the next following day, not being a specified day such as Saturday or a general holiday.[1]

Discussion

7.  Pursuant to Order 32, rule 11 and 11A of the RHC[2], 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. The applicant has given no good explanation for his delay. However, I shall consider the merits of the case.

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.  The applicant claimed that if refouled, he would be harmed or killed by his father in law Mr. Miah. He also feared that he would be arrested by the police as Mr. Miah filed a false case of murder against him.

11.  By the Director Decisions, the Director refused his claim for the reason that his claim was not substantiated. He appealed to the Board.

12.  Having considered the applicant’s claim, the Board dismissed his appeal. The Board identified several aspects of the applicant’s evidence that were not credible or reliable.

13.  The applicant is unable to raise any valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of the Court in the assessment of his application.

14.  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.