RE SANDHU VINNY

HCAL 673/2019

[2022] HKCFI 2991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 673 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 for staying in Hong Kong without permission 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”). The Director had made 2 decisions, the first one on his claim on Torture risk, BOR 3 risk and Persecution risk; the second one on BOR 2 risk. He appealed against the Director’s First Decision and failed. He also appealed against the Director’s Second Decision. This time, he was out of time. Having considered his application, the Board, by its Decision (the “Board’s Second Decision”), refused to extend time for him to lodge his notice of appeal.

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 Second Decision.

3.  By Form CALL-1 dated 8 August 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 9 September 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said that the Court’s decision is unfair without giving him an opportunity to clarify his case and situation in his country. Also, he received the Court’s decision late and he had to obtain assistance from his friend to prepare his case.

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.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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. Nevertheless, I shall consider the merits of the case.

7.  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].”

8.  The applicant claimed that, if refouled, he would be harmed or killed by Mr. Goyal, a business man who was connected with the Shiromani Akali Dal (“SAD”), because he refused to assist in Goyal’s illegal activities and exposed the said activities to the police.

9.  By way of the Director’s Notice of Decision (the Director’s First Decision”), the Director refused the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk after considering the merits of the applicant’s case. By the Director’s Notice of Further Decision, (“the Director’s Second Decision”), the Director refused the applicant’s claim on BOR 2 risk, for the reason that his claim was not substantiated. The applicant appealed.

10.  The applicant appealed the Director’s First Decision to the Board. The applicant only answered a few questions from the Board, but refused to answer further questions. The Board then proceeded to consider the applicant’s credibility. Having considered the evidence, the Board found that the material aspects of the applicant’s claim were not credible and dismissed his appeal.

11.  The applicant then appealed the Director’s Second Decision to the Board. But this time, he was late by 3 months and 24 days. His explanation that he had changed his address without updating the Board was not accepted by the Board. The Board refused to extend time for him to file the notice of appeal. In effect, his appeal against the Director’s Second Decision failed.

12.  It It is clear that the Board had considered the merits of his case with reasons set out in the Board’s First Decision. The applicant has not applied for leave for judicial review of the Board’s First Decision. In the Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. …upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

13.  The applicant’s application did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the RHC, his application was dealt with on paper. From the context of the case, the situation in his country does not assist his application. In view of the Court of Appeal’s decision, I find that there is no realistic prospect of success in his intended appeal.

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