RE SHERPA CHHIRI

HCAL 1042/2019

[2022] HKCFI 2387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 1042 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 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 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 19 July 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he did not receive the Court’s decision. According to the court’s record, the Court’s decision was sent to his last known address on 24 May 2022.

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 the people from the Women’s Orgainzation (also known as Aama Samuha) and also he would be arrested by the Nepalese police.

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

9.  Having considered the applicant’s evidence, the Board found that there were discrepancies in his evidence. Such discrepancies were not fatal to his claim, but had, to a certain extent, undermined the reliability of the various allegations and cast doubt on his credibility [31]. However, the Board finally came to its conclusion that there was no evidence that the women had the intention of torturing him within the context of the statute; that there was no evidence to show that the Nepalese government was involved in the incidents or that the state was unwilling to render protection to him and that there was no evidence that the applicant had a well-founded fear of persecution under the Convention [78-83]. The Board dismissed his claim on all risks and affirmed the Director’s Decision. 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. In the applicant’s affirmation in support of his application for extension of time to appeal, he had not set out any reasons to show that he has any reasonable prospect of success in his intended appeal.

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