KUMAR SHRESTHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2178/2018

[2023] HKCFI 2645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2178 OF 2018

_____________

_____________

________________

D E C I S I O N

________________

1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). 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 (“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 21 January 2022 (“the Court’s decision”), the Court 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 20 September 2023 for extension of time to file his notice of appeal. In his supporting affirmation, he said that he did not agree with the Court’s decision as it was reached unfairly without allowing him an opportunity to clarify his case and his situation in his country. He did not receive the Court’s notice of the result of the Court’s decision. According to the record, the Court’s decision was sent to his last known address on 21 January 2022 without being returned.

Discussion

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

6.  The Court shall consider the factors as set out in AW v Director of Immigration and William Lam [2016] 2 HKC 393 at para 27(3) in considering if extension of time should be extended: (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.

7.  The deadline for his appeal is 4 February 2022. The applicant is late for about 1 year and 8 months. His explanation for the delay is not acceptable to the Court. Nevertheless, I shall consider the merits of his 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’s claim was based upon his allegation that if refouled, he would be harmed or killed by members of Maoist because he and his father protested against them for abducting three villagers.

10.  Having considered the evidence, the Board found that his evidence was not believable; that state protection was available to him and that internal relocation was a viable alternative.

11.  The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

12.  There is not any realistic prospect of success in his intended appeal.

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