RE EDUARDO JAGAME OGABAR ALIAS ANTONIO JR ARANA DELANTE

HCAL 1884/2018

[2021] HKCFI 1161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 1884 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”). By Notice of Decision dated 28 November 2017 (“the Director’s Decision”), the Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision dated 31 August 2018 (“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. By Order dated 31 July 2020 (“the Court’s decision”), the Court refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

3.  The applicant intends to appeal to the Court of Appeal against the Court’s decision.  However, he is out of time under Order 53, rule 3(4) of the RHC. He filed a summons on 12 March 2021 for extension of time for his appeal.

4.  In his affidavit in support of his application, he said he did not receive the Court’s decision within 14 days and that he should be given the opportunity to present his case.  He exhibited the Court’s decision and the Court’s Order dated 31 July 2020.  However, the Court’s decision was sent to the applicant’s last known address without return.  He is deemed to have received the Court’s decision.

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] §19, the Court of Appeal held that in order to determine whether time should be extended for the applicant to appeal the Court’s decision refusing leave to apply for judicial review to the Court of Appeal, the prospect of success of the intended appeal is important and the court will not grant extension of time for a hopeless appeal to be pursued and the applicant has to identify any error on the part of the Judge in refusing to grant him leave to apply for judicial review. [23]

7.  The Court had in its decision, set out the reasons why it refused to grant leave to the applicant to apply for judicial review of the Board’s Decision.

8.  The Board found that the applicant was not a truthful witness. It simply rejected his evidence on the facts of his case.  In other words, the applicant has no factual basis in support of his application.

9.  The Court had considered the grounds for his application for leave to apply for judicial review and dealt with them in its decision.

10.  The Court had considered the Board’s Decision and found that it was without fault.

11.  His grounds for this application are not valid.

12.  In the circumstances, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against the Court’s decision.  I refuse to extend time for his appeal. Accordingly, I dismiss his application.