RE GURPREET SINGH

HCAL 2825/2018

[2022] HKCFI 1596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2825 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 21 March 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 4 May 2022 for appeal against the Court’s decision out of time. The Registry of the High Court was closed between 7 March 2022 and 11 April 2022 because of COVID 19 virus, such period should not be counted for the time for appeal. The deadline should therefore be 26 April 2022 (14 days from 12 April 2022).

5.  In his affirmation in support of his application, he said the delay was due to his lack of knowledge and resources.

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. 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 harmed or killed by his father.

10.  The Director refused his claim on the grounds of Torture risk, BOR3 risk and Persecution risk. The Director found that the level of risk of harm from the applicant’s father upon refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[14]; (ii) state protection would be available to him [15]-[17]; and (iii) internal relocation was an option open to him [18]-[22]. In the Notice of Further Decision dated 1 February 2017, the Director also rejected his claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that his right to life under BOR2 would be violated upon his return. The references refer to the Director’s Decisions. He appealed to the Board.

11.  Having considered the applicant’s evidence, the Board found that (i) the applicant was not inflicted with serious injuries from his father. There were mere quarrels between them and the injuries from the alleged attack were not severe; (ii) the honor killing was only a verbal threat; and (iii) after the alleged attack, the applicant continued to stay in his home village unharmed [21]. Further, the Board considered the country of origin information and found that state protection was available to the applicant [25]-[27]. In assessing the individual grounds, the Board also found that it was a private dispute without state involvement [29]-[31]. In any event, internal relocation was available to the applicant [44]-[47]. For these reasons, the Board rejected the applicant’s claim and dismissed his appeal. The references refer to 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.