RAJWINDER SINGH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2380/2018

[2023] HKCFI 1120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2380 OF 2018

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D E C I S I O N

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THE APPLICATION

1.  This is the applicants’ joint application for extension of time to appeal against the Court’s decision as described below.

2.  The 1^st applicant and the 2^nd applicant are husband and wife. They are remaining in Hong Kong illegally. They made an application for non-refoulement protection to the Director of Immigration (“the Director”). By the Director’s Decision dated 24 October 2017 (“the Director’s Decision”), their application was rejected.

3.  They appealed the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”).

4.  By Notice of Decision dated 5 October 2018 (“the Board’s Decision”), the Board dismissed their appeal.

5.  The applicants jointly filed Form 86 dated 29 October 2018 for leave to apply for judicial review of the Board’s Decision.

6.  By Form CALL-1 dated 8 November 2022 (“the Court’s decision”), the Court dismissed their application for the reason that their application does not have a realistic prospect of success. The deadline for the applicants to appeal the Court’s decision to the Court of Appeal is 23 November 2022. The delay is more than 4 months.

7.  By Summons and Affirmation dated 12 April 2023, the applicants jointly applied to the court for extension of time to appeal the Court’s decision to the Court of Appeal.

8.  In the Affirmation in support of their application, he said he did not receive the Court’s decision and they have a baby and are stateless.

9.  According to the record, the Court’s decision was sent to the applicants’ last known address on 8 November 2022 without being returned from the Post office.

DISCUSSION

10.  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.

11.  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.

12.  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].”

13.  The applicants’ claims are based on the fear that, if refouled, they would be harmed or killed by (1) members of the Shiromani Akali Dal and (2) a man called Resham who had a fight with the 1^st applicant during Diwali Festival.

14.  The Director refused their application for the reason that their claims are not substantiated. The applicants appealed to the Board.

15.  Having considered the evidence, the Board found that there will be no real risk of harm or being killed if they return to India and internal relocation is a viable alternative.

16.  The applicants have not given any reason for their delay. On the authority of AW, their application can be dismissed. On the merits of their application, they have no merits in support of their application.

17.  There is no realistic prospect of success in their intended appeal against the Court’s decision.

18.  I dismiss the applicants’ joint application.