Case Document

100%Judiciary

HCAL 2890/2018

[2021] HKCFI 1945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2890 OF 2018

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RE:

IYADURAI CHANDRAMOHAN

Applicant

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

Date of Decision: 19 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 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 Decisions.

3.By Order dated 27 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 on 26 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 was not aware that he had to produce documentary proof in support of his claim; that the Director, the Board and the Judge had failed to take into consideration that in 2003 when he left Sri Lanka the conflict between the LTTE and the Sri Lankan Army was still in progress; that he is a Tamil and was therefore always subject to harassment and he had participated in peaceful rallies against the government and the Army, which treated the people badly; that he left his country without taking with him the documents because it would be dangerous or inconvenient for him to do so.

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 confirmed the Director’s Decisions for the reasons as set out in paragraphs 31- 67 of the Board’s Decision, with the summaries below.

(1) It did not accept his evidence in relation to the incidents in 2002 [40].

(2) It did not believe that he was targeted by the Sri Lankan government for ill-treatment or torture [53].

(3) There was no evidence that he was under a warrant of arrest [56].

(4) There was no circumstantial evidence in support of the fact that he would be subjected to ill-treatment of torture in Sri Lankan for his Tamil ethnicity [62].

(5) There was no evidence that he would be persecuted for being a Hindu [63].

(6) The Board did not accept that the applicant would be at risk of personal harm or torture if he returned to Sri Lanka [67].

9.The applicant also appealed to the Board against the Director’s Further Decision. He had attended before the Board for his appeal.

10.By the Board’s Further Decision, the Board had taken into consideration the evidence in the Board’s Decision. It rejected his appeal and confirmed the Director’s Further Decision because he failed to establish by evidence that he was subjected to BOR 2 risk.

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

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

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