RE KAWALJIT SINGH

HCAL 297/2021

[2021] HKCFI 2972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 297 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 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 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 25 May 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons filed on 28 September 2021 for judicial review out of time.

5.  In his affirmation in support of his application, he said that the Court’s decision does not tell him the time limit for appeal.  He does not understand the contents of the Court’s decision.  Therefore, the Court has not exercise caution and diligence in handling his case as a litigant in person.  He asks for translation assistance and an oral hearing of his application.

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 first consider the merit of his intended appeal.

10.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decisions.  The Board, having considered his journey from India to Hong Kong and his behaviour in Hong Kong as a whole, found that he did not come to Hong Kong for protection from danger to his life as he came to Hong Kong as a visitor [10]; that it did not believe that Jassa and Garry were influential on a nationwide scale [12]; that his evidence on his injuries was exaggerated [23]; that he failed to substantiate that there were substantial grounds for believing that he would be in danger of being subjected to torture [37]; that police protection should be available to him [46]; that he failed to substantiate that he would be subjected to torture under BOR 3 risk [49]; that he failed to establish there were BOR 2 risks  to him [54]; that he failed to establish that he was subjected to Persecution risk [56].  The references are those in the Board’s Decision.

11.  The Court, having examined the Board’s decision, considered that he had advanced no valid grounds for his application and concluded that he had no realistic prospect of success in the proposed judicial review.

12.  The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 held:

“13. … it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].”

13.  The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error.  He is therefore unable to show that he has any realistic prospect of success in his intended appeal.

14.  In the circumstances, I refuse to extend time for his appeal.  Accordingly, I dismiss his application.