RE MENDES NELSON

HCAL 1562/2018

[2021] HKCFI 3138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  1562 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 4 August 2020 (the “Court’s decision”), the Court refused to grant him extension of time 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.

4.  The applicant filed a summons on 10 November 2020 for appeal against the Court’s decision out of time.  This file was misplaced and has taken a longer time than usual for its disposal.

5.  In his affirmation in support of his application, he said that he asked the Court to extend time for him to appeal the Court’s decision as he did not receive the decision.

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.

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 Board rejected his appeal and confirmed the Director’s Decisions.  The Board had doubt about his genuine intention of coming to Hong Kong because he did not seek protection at the first available opportunity.  Also, the Board found that state protection was available to him and internal relocation was an option open to him.

10.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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.