RE ZAMORA ROWEL ESPIRITU

HCAL 224/2019

[2022] HKCFI 1009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 224 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 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 Form CALL-1 dated 31 December 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 March 2022 for appeal against the Court’s decision out of time, the delay being 2 months short of 10 days.

5.  In his affirmation in support of his application, he said he did not receive the Court’s decision within 14 days. However, according to the court’s record, the Court’s decision was sent to his last known address without return on 31 December 2021 without return.

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 is significant. 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 Mr. Arnel because of marital dispute with his wife. He also feared that Arnel’s uncle, who is the village leader would harm him as he had previously made a complaint against him at the Ilocano sur police station.

10.  The Director found that the level of risk of him being harmed or killed if he returned to the Philippines was assessed to be low [13]; that there was no evidence to show that the state was involved and therefore state protection would be available to him [16] and that internal relocation was an option open to him [22]. In paragraph 6 of the Director’s Further Decision, the Director found that he failed to establish that there was personal and real risk that he was subjected to BOR 2 risk. He appealed to the Board.

11.  He was late in filing the notice of appeal with the Board. The Board was not satisfied with his reasons for being late. However, the Board went further to consider the Director’s Decisions. It agreed with the Director and dismissed his appeal.

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 I dismiss his application.