Case Document

100%Judiciary

HCAL 1811/2018

[2021] HKCFI 1959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1811 OF 2018

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RE:

ALAGAR VELAUTHAM

Applicant

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

Date of Decision: 26 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 9 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 17 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.

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.The Board considered the applicant’s evidence and found:

“25. …the Appellant gave different versions of fact in the TCF, the ROI and his evidence at the Hearing. …

…

78. …the inconsistencies and deficiencies in the Appellant’s evidence are simply too numerous and too important to be explained merely by a muddled head or lapse of memory. …Looking at all the evidence as a whole, I find that the Appellant is not a credible witness. I do not accept his account.

…

91. …The Appellant have failed to prove the primary facts even on the lower standard approved in Karanakaran. I do not believe his account. I do not accept that he came to Hong Kong due to a fear for his life and safety. There is no factual basis to support any of the applicable grounds.

92. Moreover, even if I adopt his original account, I find that there is no real risk that the Appellant would be subjected to any of the proscribed ill-treatment on his return to Sri Lanka. His alleged fear is not real.”

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.