RE VISHPAL

HCAL 1433/2018

[2021] HKCFI 3596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1433 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”).  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 19 March 2021 (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 November 2021 for appeal against the Order out of time.

5.  In his affirmation in support of his application, he said:

“I had not intention to appeal. But now I want to appeal. Please give me chance.”

Discussion

6.  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.

7.  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.  The delay is significant and serious.  Nevertheless, I shall consider the merits of the case.

8.  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].”

9.  The applicant claimed that if refouled, he would be harmed or killed by Naresh Kumar (“Naresh”).  He was a witness of a murder case where Naresh shot another person called Uday.  He had given a statement to police.  Naresh and his people went to him and asked him to withdraw his statement.  He refused.  They assaulted him with weapons.  He tried to avoid them by residing elsewhere.  But they were able to trace him.  Finally, he had to leave India for Hong Kong.

10.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)  The Board found that the applicant’s claim to have been pursued by Naresh and his relatives in India were not true and that his claim to fear ill-treatment at their hands should he return to India was also unfounded. [46]

(2)  The Board found that there were not any grounds, let alone substantiated grounds, to support the conclusion that he would face a real risk of ill-treatment if he returned to India. [47]

(3)  The Board therefore rejected his claim on Persecution risk [50], BOR 3 risk [52], BOR 2 risk [53] and Torture risk [56].

11.  The applicant has not been able to set out any valid ground to challenge the Board’s Decision.  Nor can he point out any error on the part of this Court in the assessment of his application. 

12.  There is no realistic prospect of success in his intended appeal.  I therefore refuse to extend time for him to appeal and dismiss his application.