RE CORTEZ JAIME SANDIEGO

HCAL 512/2019

[2022] HKCFI 123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 512 OF 2019  

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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 by overstaying 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 30 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 4 January 2022 for appeal against the Court’s decision out of time.

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

“… I did not receive the Order and Judgment within 14 days. I should be given a reasonable opportunity to present my case.”

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 21 days was significant. Form CALL-1 was sent to his last known address on the same day of the Order. 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 Ramil Torres (“RT”), a member of a syndicate, for ceasing to deliver drug for him. 

10.  The Director found that the level of risk of him being harmed or killed by RT upon refoulement was assessed to be low; that state protection was available to him and that internal relocation was an option open to him.

11.  By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal. The Board cast serious doubts as to the applicant’s claim because his evidence was evasive, inconsistent and confusing.  The Board refused to accept that he was hired by RT to deliver the drugs and the applicant only presented himself to be a tricycle driver so as to fabricate his claim [32].  The Board also found that there was no real risk of harm if the applicant was refouled to Philippines as, even on the applicant’s own evidence, it was not established that RT had ever intended to harm or kill him [33]-[37].  In these circumstances, the Board rejected the applicant’s claim on all applicable grounds and dismissed his appeal [38]-[57]. See the Board’s Decision.

12.  The applicant is unable 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.