RE RAM KRISHNA GURUNG

HCAL 990/2018

[2021] HKCFI 2803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 990 OF 2018

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D E C I S I O N

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The application

1.  The applicant is now being detained in Castle Peak Bay Immigration Centre.

2.  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.

3.  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.

4.  He was late in his application for leave to apply for judicial review. By Order dated 22 October 2020 (the “Court’s decision”), the Court refused to extend time for him to apply for leave to apply for judicial review of the Board’s Decision and dismissed his application for the reason that there was no realistic prospect of success in his intended application.

5.  The applicant filed a summons on 6 September 2021 for appeal against the Court’s decision out of time.

6.  In his affirmation in support of his application, he said that the Court’s decision is unfair without giving him the opportunity to clarify his case and situation in his country. He is a litigant in person without knowledge of the time limit for appeal and he did not receive the Court’s decision.

Discussion

7.  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.

8.  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.

9.  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].”

10.  By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal for the reason that his evidence was found to be incredible and speculative. The Board rejected his evidence on the facts in support of his claim.

11.  The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error. There is no realistic prospect of success in his intended appeal against the Court’s Decision.

12.  In the circumstances, I refuse to extend time for his appeal against the Court’s decision. Accordingly, I dismiss his application.