RE GURMEET SINGH

HCAL 671/2019

[2022] HKCFI 3019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 671 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 Decision, 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 Form CALL-1 dated 24 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 15 September 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he does not have sufficient sources for his appeal.

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 delay is only 8 days. Nevertheless, I shall 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 his parental uncles and aunties because of land disputes.

9.  By way of the Director’s Decision, the Director refused the applicant’s claim for the reason that his claim was not substantiated. The applicant appealed to the Board.

10.  The Board found that, on his own evidence, the alleged injuries from the three attacks were not serious. It was also the applicant’s speculation that the police would not assist him. The threats from Sukhwinder after his father’s death were bare statements. The Board also noticed that, in the past five years, the applicant only suffered minor injuries from three attacks, which showed that Sukhwinder had no intention to cause serious harms to him [22]. The Board also considered the country of origin information and concluded that state protection was available to him [25]-[27]. Further, when assessing his claim under Torture risk, the Board found that the family disputes were private in nature without state involvement. In any event, internal relocation was also a viable option [40]-[43]. For these reasons, the Board rejected his claim on the rest of the applicable grounds and dismissed his appeal. The references refer to the Boards’ 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.