Case Document

100%Judiciary

HCAL 2894/2018

[2021] HKCFI 1939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2894 OF 2018

_____________

RE:

CHONGBANG SHREE PRASAD

Applicant

_____________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

22 July 2021

_____________

D E C I S I O N

_____________

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 dated 17 December 2018 to apply for leave to apply for judicial review of the Board’s Decision.

3.By Order dated 7 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 25 August 2020 applying for extension of time to appeal against the Court’s decision.

5.In his affirmation in support of his application, he did not explain why he is late. He said that there are two grounds that involve points of law of great and general importance, namely, whether lack of legal representation is a reasonably arguable basis to challenge the fairness of process; and whether there ought to be an additional basis for advancing a case on the BOR 2 risk separate from the BOR 3 risk, torture and persecution.

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 Decisions. The Board had given the reasons below in its Decision. The references in brackets are in the Board’s Decision.

(1) The applicant was not a truthful witness and he had fabricated claims in relation to harms he feared from the Maoists or from people associated with his first wife [97].

(2) He changed his evidence as he gave evidence [98].

(3) He gave inconsistent and contradictory evidence [99-103].

(4) He had stayed for more than 10 years in Hong Kong and he had not received any harm during this period of time [104].

(5) His fear was not genuine [106].

(6) His evidence was rejected and the Board found that there was no real risk he would face any of the proscribed forms of harm if he returned to Nepal [114].

9.The applicant has not been able to say in what respect had the Board erred in its decision. As to the two legal issues he mentioned in his affirmation, he did not raise them in his affirmation in support of his application for leave to apply for judicial review.

10.Even if those grounds were raised in his application for leave, they can be disposed of quite easily. The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22]. The issues of BOR 2 risk, BOR 3 risk and Persecution risk were considered separately. The determining factor is that the Board found that he had fabricated his case for his claim. In other words, he has no factual basis in support of his claim.

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.