RE KAMALJEET SINGH

HCAL 706/2019

[2022] HKCFI 3433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 706 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 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 (respectively called the “Board’s First Decision and the Board’s BOR 2 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 28 July 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 against the Board’s Decision.

4.  The applicant filed a summons on 26 October 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he did not receive the Court’s decision. According to the record, the Court’s decision was sent to his last known address on 31 August 2022.

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 on 14 September 2022 and the delay is 1 months and 12 days. The applicant has not given any explanation for his delay. I shall, nevertheless, 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 the supporters of Akali Dal Party (“ADP”) because of his involvement with the Indian National Congress Party (“CP”).

9.  By way of the Director’s Decisions respectively dated 28 May 2015, the Director’s First Decision and dated 8 February 2017, the Director’s Second Decision, the Director refused the applicant’s claim for the reason that his claim was not substantiated. He appealed to the Board.

10.  On 15 June 2015, the applicant first appealed the Director’s First Decision to the Board. He was 3 days out of time [4]. The applicant explained “…I apologize because I had forgotten” [sic] [6].

11.  The Board was of the view that it would not entertain any trivial excuses unless there was extenuating circumstance which made the 14-day period for filing of the notice of appeal/petition impossible [7]. As a result, it considered that the applicant’s explanation of forgetfulness was unacceptable and would not be entertained [8].

12.  Thus, having reviewed the applicant’s grounds of appeal and the Director’s First Decision, the Board found that the Director’s First Decision could not be faulted. In the decision dated 31 August 2015, the Board refused to allow the late filing of the notice of appeal/petition against the Director’s First Decision [9]-[11] (the “Board’s First Decision”). At paragraph 9 of the Board’s First Decision, the adjudicator said:

“I have carefully considered the Notice of Decision [the Director’s First Decision]. The Immigration Officer had seriously considered and analyzed his claim in detail. I cannot find fault with his decision.”

13.  On 15 January 2019, the Board held an oral hearing for the applicant’s appeal against the Director’s Second Decision. After considering the applicant’s grounds of appeal, the Board found that it merely contained hearsay statements [9] and did not disclose any additional facts to support his claim under BOR 2 risk. The Board further noted that the information provided in the applicant’s grounds of appeal only concerned his problem with the ADP members which had been determined in the Board’s First Decision. Pursuant to the principle of res judicata, the Board concluded that it could not be re-litigated.

14.  Thus, by way of the Board’s Second Decision, the Board dismissed his appeal against the Director’s Second Decision.

15.  The applicant has failed to raise any valid reason to show that there is any realistic prospect of success in his intended appeal.

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