RE KULDEEP SINGH

HCAL 1508/2018

[2022] HKCFI 1624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1508 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 Decisions (the “Board’s Decisions”), 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 Decisions.

3.  By Form CALL-1 dated 28 February 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. The deadline for him to file his notice of appeal is 15 March 2022 (within 14 days after such order) .

4.  The applicant filed a summons on 16 May 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said he did not get the document from the High Court.

6.  According to the court’s record, the Court’s decision was sent to the applicant’s last known address on 28 February 2022. Pursuant to Order 65, rules 5 (2)(b) and 7(2) of the RHC, it is deemed to be served on the next following day , not being a specified day such as Saturday or a general holiday[1], that is, 2 March 2022.

Discussion

7.  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.

8.  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.

9.  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].”

10.  The applicant claimed that if refouled, he would be harmed or killed by the supporters of Indian National Lok Dal Party (“INLD”) due to his support of the Congress Party (“CP”).

11.  By the Director’s First Decision, the Director refused his claim on the ground of Persecution risk, Torture risk and BOR3 risk for the reason that his claim was not substantiated. In a Notice of Further Decision dated 19 January 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 to his home country. He appealed to the Board.

12.  Having considered the applicant’s evidence, the Board considered that the core aspects of the applicant’s claim were not credible or reliable and it dismissed the applicant’s appeal on all grounds.

13.  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 the Court in the assessment of his application.

14.  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.