RE GURUNG SANTA BAHADUR

HCAL 1791/2018

[2021] HKCFI 963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1791 OF 2018

_____________

_____________

_____________

D E C I S I O N

_____________

The application

1.  The applicant is an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). By Notice of Decision dated 17 April 2018 (“the Director’s Decision”), the Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision dated 16 August 2018 (“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. He had appeared before the Court. By Order dated 30 June 2020 (“the Court’s decision”), the Court refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

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 RHC. He filed a summons on 26 January 2021 for extension of time for his appeal and for leave to advance new ground of appeal.

4.  He set out his grounds in support of this application as follows:

(1) he is being imprisoned;

(2) the Court’s order is unreasonable;

(3) he does not know the legal procedure and time limit for him to file his appeal; and

(4) he does not have money to engage a lawyer.

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] §19, the Court of Appeal held that in order to determine whether time should be extended for the applicant to appeal the Court’s decision refusing leave to apply for judicial review to the Court of Appeal, the prospect of success of the intended appeal is important and the court will not grant extension of time for a hopeless appeal to be pursued and the applicant has to identify any error on the part of the Judge in refusing to grant him leave to apply for judicial review. [23]

7.  The Court had in its decision, set out the reasons why it refused to grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant’s grounds in support of his application is that if he returns to Nepal, he would be harmed or even killed by the people of Communist Party of Nepal (Maoist).

8.  The Board found that taking his evidence as it was, he was unable to show that he was tortured or would be tortured if he returned to Nepal; that the state was not in any way involved in the fight between his camp and the Communist camp. As such, he was unable to show that he had the BOR 2 risk, BOR 3 risk or the Persecution risk. See §§11-34 of the Board’s Decision.

9.  The Court had considered the grounds for his application for leave to apply for judicial review and dealt with them in its decision.

10.  The Court had considered the Board’s Decision and found that it was without fault.

11.  His grounds for this application are not valid.

12.  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. I refuse to extend time for his appeal. He has not set out his new ground of appeal. I also refuse to grant leave for him to advance new ground of appeal. Accordingly, I dismiss his application.