Re Fusseini Mohamed

HCAL 1651/2018

[2020] HKCFI 1378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1651 OF 2018

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Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:  2 July 2020

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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 rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision dated 14 May 2018 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s Decision.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court, the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision. His application was out of time. He had appeared before the Court. By Order dated 15 January 2020 (“the Court’s decision”), I refused to extend time for him to apply for leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

3.The applicant intends to appeal to the Court of Appeal against the Court’s decision. However, he is out of time under Order 59, rule 2B(1), RHC. The deadline for him to apply for leave to appeal is 29 January 2020. He filed a summons on 9 March 2020 for leave to appeal out of time against the Court’s decision.

4.He filed a written submission in support of his application. His reason for the delay is that he did not receive the court’s decision. He said that the court did not accept his further evidence at the hearing and rejected his application. He wanted to adduce his documents for the appeal.

Discussion

5.In Re Adumekwe Rowland Ejike [2019] HKCA 702 §19, the Court of Appeal held that in order to determine whether time should be extended for the applicant to appeal the decision of the Court of the First Instance refusing leave to apply for judicial review to the Court of Appeal, the prospect of success of the intended appeal is important and the court will not grant extension of time for a hopeless appeal to be pursued. The rationale applies to this application.

6.I have, in my decision, set out the reasons why I refused to extend time for him to apply for leave to apply for judicial review of the Board’s Decision.

7.It is quite obvious that the Board rejected his appeal because, after considering his evidence, the Board did not accept his evidence on the facts of his case. Therefore, he has no factual basis in support of his case. The Board is the ultimate investigator of the facts of the case. There is no evidence to show that the court should interfere with the Board’s decision.

8.In the application for leave to apply for judicial review, the Court should not make investigation into the fact, which should be within the province of the Director of Immigration or the Torture Claims Appeal Board. The documents that the applicant intended to adduce relate to the facts of his case. It is therefore legitimate for the Court to refuse to accept them as evidence.

9.I have given my reasons in my decision for not extending time for him to apply for leave for the intended judicial review. He has given no reason to say that my decision was wrong.

10.In the circumstances, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against my decision. Accordingly, I dismiss his application.

11.If the applicant wishes to appeal against this decision, he should appeal to the Court of Appeal within 14 days from the date of this Order in accordance with Order 59, rule 2B(3) of the Rules of the High Court.

The applicant acted in person.