Case Document

100%Judiciary

HCAL 2851/2018

[2021] HKCFI 1928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2851 OF 2018

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RE:

DARISUREN GANBOLD

Applicant

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

Date of Decision: 14 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 5 August 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 27 August 2020 applying for extension of time to appeal against the Court’s decision. The file was misplaced and the application was not dealt with within the usual time.

5.In his affirmation in support of his application, he said that it was unsafe for him to return to Mongolia.

Discussion

6.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, 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.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons below; the references are those in the Board’s Decision.

(1) The evidence that S. Erdene would harm him was from his wife – hearsay evidence.

(2) His evidence was not reliable because he only raised non-refoulement claim some 8 months after he came to Hong Kong, relying upon Usman Butt, Sunil Korrala, Wasim Ashraf & Others HCMA 70,114, 244, 379, 402/2010 at §41.

(3) His evidence was not credible because he committed crimes in Hong Kong, section 37ZD(3).

(4) Even if he established the facts, they did not support his non-refoulement claim.

See paragraphs 30-33 of the Board’s Decision.

9.The applicant has not been able to say in what respect had the Board erred in its Decision. His reason above does not assist his application.

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

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