Re Patel Samir Gulab

HCAL 1864/2018

[2021] HKCFI 719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1864 OF 2018  

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

Date of Decision: 25 March 2021

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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”). By Notice of Decision dated 20 October 2015 (“the Director’s Decision”), 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 6 August 2018 (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

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. He had appeared before the Court. By Order dated 24 June 2020 (“the Court’s decision”), the Court refused to grant him 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 53, rule 3(4) of the RHC. He filed a summons on 7 January 2021 for extension of time for his appeal.

4.He set out his grounds in support of this application as follows:

(1)  he did not know the legal procedure and time limit for him to file his appeal;

(2)  he does not know English; and

(3)  he asked around for the procedure, but he had passed the time for appeal.

Discussion

5.In Re Adumekwe Rowland Ejike [2019] §19, the Court of Appeal held that in order to determine whether time should be extended for the applicant to appeal the Court’s decision 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 and the applicant has to identify any error on the part of the Judge in refusing to grant him leave to apply for judicial review. [23]

6.The Court had in its decision, set out the reasons why it refused to grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant’s grounds in support of his application is that if he returns to India, he would be harmed or killed by a gangster called Sheikh Hassan because he failed to persuade his parents to sell his father’s house at a lower price to Sheikh Hassan. He also feared that he would be framed up by police for kidnapping and raping a woman, Sarita.

7.The Board found that he had never suffered any assault or injury from Sheikh Hassan and his alleged fear of future harm was remote. The Board also did not believe that he would be subjected to police frame-up.

8.The Court had considered the grounds for his application for leave to apply for judicial review and dealt with them in its decision.

9.The Court had considered the Board’s Decision and found that it was without fault.

10.His grounds for this application are not valid.

11.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 the Court’s decision. I refuse to extend time for his appeal. Accordingly, I dismiss his application.