RE OKEKE UGOCHUKWU DESMOND

HCAL 2303/2018

[2022] HKCFI 2705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 2303 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 for remaining in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected his application and she 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 24 May 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 28 July 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said that his life is still in danger as there are many unknown gunmen in Nigeria.

Discussion

5.  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

6.  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].”

7.  I shall therefore consider the merits of his case. The applicant claimed that, if refouled, he would be harmed or killed by his boss Mr. Emeka.

8.  By way of the Director’s Decisions, the Director refused the applicant’s claim for the reason that his claim was not substantiated. The applicant appealed to the Board.

9.  The Board considered the country of origin information (“COI”) and also the applicant’s comments on COI. It considered that, given the lapse of time, Emeka would not be interested in pursuing the applicant who had no money to repay. Meanwhile, it was only a private dispute without state involvement [35]-[37]. Further, the COI indicated that internal relocation would be available to the applicant [9]. As a result, the applicant’s claim under Torture risk failed. The Board also found that the applicant did not suffer any severe injury or serious harm which would qualify him as a victim under BOR3 risk [14]. Further, reasonable state protection was an available alternative [20]. For these reasons, the Board rejected the applicant’s claim on all applicable grounds. Independently assessed, the applicant’s evidence was found to be incredible in light of his immigration history [22]-[30]. The references refer to the Board’s Decision.

10.  It is clear that the Board dismissed his appeal as it did not accept the applicant’s facts in support of his claim after careful evaluation of the evidence before it and it was entitled to do so. In the applicant’s affirmation in support of his application, he did not explain the reason why he is late in his intended appeal. The reasons given by him are not valid reasons to challenge the Board’s Decision.

11.  The applicant has not set out any reason to show that he has any reasonable prospect of success in his intended appeal.

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