RE CHETRY GOKUL

HCAL 732/2017

[2020] HKCFI 1261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 732 OF 2017

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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 rejected his application and he appealed to the Torture Claims Appeal Board/Non-Refoulement claims Petition Office (“the Board”).  Having considered his evidence, the Board, by its Decision dated 1 September 2017 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court, the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.  He was absent on the day of hearing without any explanation and his application was considered by Deputy Judge Woodcock on the papers.  By Form Call-1 dated 9 August 2018 (“the court’s decision”), the court dismissed his application.

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 Rules of the High Court.  The deadline for him to appeal is 23 August 2018.  He filed a summons on 4 December 2019 for time extension for his appeal and for leave to advance new ground of appeal.

4.  A hearing was fixed for him to attend court for his application on 23 January 2020 and he appeared before me.

The applicant’s affirmation

5.  The applicant filed an affirmation in support of his application.  In his affirmation he set out the reasons below:

(1) he is a litigant in person and he did not know that he was only allowed 14 days to appeal;

(2) he was being detained by the Immigration authority and he was not aware that his application was dismissed for want of prosecution.

Discussion

6.  The Court of Appeal in Re Adumekwe Rowland Ejike [2019] HKCA 702 28 June 2019 held:

“19. The prospect of success of the intended appeal is important; the court will not grant extension of time for a hopeless appeal to be pursued.”

7.  Ground (1) does not amount to an excuse for his intended appeal out of time. Ground (2) is a mistake as the court did not dismiss his application for want of prosecution.  The court dealt with the merits of his application.

8.  When the applicant appeared before me, he said that he had received the court’s decision.

9.  I specifically asked him the reasons for him to say that the court’s decision was wrong.  He said that his life was still in danger and he was unable to say that the court’s decision was wrong.  Also, there is no reason in his affirmation that he was unable to advance his ground of appeal to the Board.

10.  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.  Accordingly, I dismiss his application.