RE SURATMAN LALU

HCAL 1311/2021

[2021] HKCFI 3731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  1311 OF 2021

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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 18 November 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 6 December 2021 for appeal against the Order out of time.

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

“ … I want oral hearing. … my life is danger that’s why I can’t go back to Indonesia…”

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 of about 1 week is not 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 the debt collectors of the Bank from which he had borrowed a loan of 192 million rupiahs for his garage business.

10.  The Director found that the level of risk of him being harmed or killed if he returned to Indonesia was assessed to be low [12]; that state protection would be available to him [15]-[16] and that internal relocation was an option open to him [20].  See the Director’s Decision.

11.  The Board agreed with the Director and affirmed his Decision.  It found that the applicant had never been tortured by the Bank’s debt collectors within the context of section 37U of the Ordinance. His case did not fall within the category of Persecution.  His experience in Indonesia did not meet the minimum level of severity requirement under BOR 3 and he failed to establish, by evidence, that he was subjected to right to life violation if he returned to Indonesia.  The Board also found that internal relocation was an option open to him [47-56].  See the Board’s Decision.

12.  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.

13.  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.