RE JOGINDER PAL

HCAL 192/2019

[2022] HKCFI 2211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 192 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 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 28 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 25 April 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. Such period should not be counted for time for appeal. The deadline for his appeal is 26 April 2022 (14 days from 12 April 2022).

5.  Since he should be within time when he filed his application for extension of time, I extend time for him to appeal. The time is extended for 14 days from the date of this Order.

6.  However, the said Order had a typing error, which was amended and served on the applicant on 28 June 2022. The amended Order also provides that the applicant may appeal the Court’s decision within 14 days from the date of the date of the date of the amended Order dated 28 June 2022. The deadline for the filing of the notice of appeal is 12 July 2022.

7.  The applicant failed to file the notice of appeal within the time as provided in the amended Order. He issued a summons on 13 July 2022 for extension of time to appeal against the Court’s decision. In his affirmation in support of his application, he said that he was not clear about the date. However, he did not set out any reasons in support of his appeal.

8.  Although the applicant is only one day late in his application for appeal, the Court has to deal with his application in accordance with the law, taking this factor into consideration as well.

Discussion

9.  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.

10.  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].”

11.  I shall therefore consider the merits of his case. According to the applicant, his father and parental uncle co-owned a bakery.

12.  By way of the Director’s Decision, the Director refused the applicant’s claim. The Director refused to believe that the claimed risk of harm was real and foreseeable because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[15]; (ii) state protection was available to him [16]-[17]; and (iii) internal relocation was also an option [18]. The references refer to the Director’s Decision. The applicant appealed to the Board.

13.  The Board observed that the applicant’s evidence was vague and inherently contradictory. It also noted that, on the applicant’s own evidence, his father and uncle continued to operate the business together and live in the same house. Such fact greatly undermined his claimed fear of harm from his uncle [25]-[29]. As a result, the Board refused to accept that there was a serious ongoing dispute with his uncle about the ownership of the business and found that the applicant had exaggerated the claimed dispute. There was therefore no basis for the applicant’s claim [31]. For this reason, the Board rejected the applicant’s claim and dismissed his appeal.

14.  It is clear that the Board dismissed his appeal as it did not accept the the applicant’s facts in support of his claim. In the applicant’s affirmation in support of his application for extension of time to appeal, he had not set out any reasons to show that he has any reasonable prospect of success in his intended appeal.

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