RE NARASINGHE MUDIYANSELAGE KUSHAN PRIYANKARA

HCAL 1652/2018

[2021] HKCFI 2066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  1652 OF 2018

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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 Decisions, 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 Decisions.

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 Order dated 5 June 2020 (the “Court’s decision”), the Court dismissed his application for the reason that there was no reasonable prospect of success in his intended application.

4.  The applicant filed a summons dated 8 September 2020 applying for extension of time to appeal against the Court’s decision.  The file was misplaced and the application was therefore unable to be dealt with within the usual time.

5.  In his affirmation in support of his application, he said that he did not receive the Court’s decision.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

7.  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].”

8.  The Board consideredthe applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusions below:

 (i)  On the evidence, the applicant failed to establish that there was a real risk that he might have the risks as claimed if he returned to Sri Lanka.

 (ii)  The Board did not believe that he came to Hong Kong for protection because he did not raise a torture claim protection to police or the Immigration Department as soon as he arrived in Hong Kong.  Nor did he raise this issue in three years and eight months after he arrived in Hong Kong.  He admitted in the questionnaire that he told the police in Hong Kong in an interview that he came to Hong Kong for a job.

 (iii)  Internal relocation was an option open to him [17].

9.  The applicant is unable to show that he has any reasonable prospect of success in his intended appeal.

10.  In the circumstances, I refuse to extend time for his appeal.  Accordingly, I dismiss his application.