Case Document

100%Judiciary

HCAL 1779/2018

[2021] HKCFI 1861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1779 OF 2018

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RE:

KARUN KUMAR

Applicant

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

Date of Decision: 8 July 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”). 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 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.

3.By Order dated 7 July 2020 (“the Court’s decision”), the Court dismissed his application for the reason that there was no reasonable prospect of success in his intended application.

4.The applicant filed a summons dated 10 August 2020 applying for extension of time to appeal against the Court’s decision. The file was misplaced and the application has not been dealt with within the usual time.

5.In his affirmation in support of his application, he said that he did not receive the Court’s decision on time and he had no legal advice. He believed that there are merits in his application for appeal out of time and he is a genuine non-refoulement claimant.

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 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].”

8.The Board considered the applicant’s evidence. The Board did not challenge the facts of his case. But it found that on the facts as alleged, the applicant failed to establish his case under the Torture Risk, the BOR 3 risk or the Prosecution risk. See paragraphs 47 -57 of the Board’s Decision. Based upon the same facts, the applicant failed to establish, on evidence, that his right of life would be violated if he returned to his own country.

9.The applicant has not been able to say in what respect had the Board erred in its Decision.

10.He is unable to show that he has any reasonable chance of success in his intended appeal.

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