RE LANG AY ERNESTO JR CABANAS

HCAL 744/2022

[2023] HKCFI 89

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 744 OF 2022

____________________

____________________

____________________

D E C I S I O N

____________________

The application

1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director 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 1 December 2022 (“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 on 21 December 2022 applying for extension of time to appeal against the Court’s decision. In his affidavit in support of his application, he said that he did not receive the Court’s decision on time. According to the record, the Court’s decision was sent to the applicant at his last known address on 1 December 2022 without return from the Post Office.

Discussion

5.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, 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 his appeal is 16 December 2022^[1]. The applicant is late for 5 days. I shall consider the merits of his 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 the family of a murdered victim.

9.  The Director refused his application because his claim was unsubstantiated. He appealed to the Board.

10.  Having considered all the evidence, the Board found that there was no evidence to show that the victim’s family posed any threats to him; that the applicant was personally targeted by the victim’s family; that he had suffered any physical or mental harms inflicted by the victim’s family or that the Philippine government would not help him [36].  In fact, state protection was proven available as shown in the country of origin information [49]-[53].  In any event, internal relocation was a viable alternative [74]-[80]. The references refer to the Board’s Decision.

11.  The applicant has raised no valid reason to show that he has a realistic prospect of success in his intended appeal.

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