RE RASOLONIRINA MARIE YVON ALJYMI

HCAL 815/2021

[2021] HKCFI 3183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 815 OF 2021 

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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 Order dated 26 August 2021 (the “Court’s decision”), the Court refused to grant him leave to apply for leave to apply for judicial review of the Board’s Decision and dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons received on 18 October 2021 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he submitted that he rejects the Court’s decision. His life will be in danger if he returns to his country. His enemies are still looking for him. He was detained there and his family is being harassed. He would not prefer to staying in the detention centre in Hong Kong if not for the dangerous situation back home. He will not return until the situation changes. However, he has not explained why he is out of time for appeal.

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.

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.  I shall therefore first consider the merit of his intended appeal.

10.  The Board considered the applicant’s evidence the Board rejected his appeal and affirmed the Director’s Decision. The Board had, at the hearing, cross-examined his evidence and found to be not true that his evidence that Ali was a powerful man in Madagascar, who could find him wherever he lived [45] and that Ali threatened to kill him if he returned to Madagascar [46]. The Board further found that Madagascar does have the law to prosecute again for trafficking wildlife should he return to Madagascar. However, the legislation was not enforced. The adjudicator had also relied upon the Marine Policy, which, coupled with the Madagascan Constitution, was of the opinion that the applicant would not face prosecution should he return to Madagascar [47].

11.  His grounds for this application are not valid as his intended appeal has no merit.

12.  The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error. There is no realistic prospect of success in his intended appeal against the Court’s decision.

13.  In the circumstances, I refuse to extend time for his appeal against the Court’s decision. Accordingly, I dismiss his application.