RE MICHAEL UGOCHUKWU KINGSLEY

HCAL 508/2019

[2022] HKCFI 1441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 508 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 by overstaying 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 Decisions”), 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 16 December 2021 (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 31 December 2021 (within 14 days after such order).

4.  The applicant filed a summons on 14 April 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 16 December 2021. The letter was returned to the court on 10 January 2022. An enqiry was made to the Immigration Department for the applicant’s updated address. The Court’s decision was then sent to the updated address on 14 January 2022. However, the letter was also returned to the court on 9 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, 17 January 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 killed by Ibekwe and/or his associates because of their grudges against his father, who refused to politically cooperate with them.

11.  The Director refused his claim. The Director found that the level of risk of him being killed by his enemies if he returned to Nigeria was assessed to be low [16]; that state protection would be available to him [18]; that the dispute was a private dispute and there was no evidence that the state was involved [22]; and internal relocation was an option open to him [23]. The references refer to the Director’s Decision. He appealed to the Board.

12.  Having considered the applicant’s evidence, the Board, for the reasons set out in the Board’s Decision, agreed with the findings of the Director and it affirmed the Director’s Decision. It further found that the applicant’s credibility was in doubt because he did not seek protection immediately after he came to Hong Kong, not until 2016, some 7 years later. Section 37ZD(1)(b) of the Ordinance. His evidence was not supported by any extrinsic evidence.

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.