Re Rajesh Kumar Alias Rajesh Kum

HCAL 2711/2018

[2021] HKCFI 2085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2711 OF 2018

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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 The applicant’s application was, pursuant to section 37ZG of the Ordinance, deemed to have been withdrawn because he failed to submit the Non-refoulement Claim Form in accordance with section 37Y of the Ordinance. He applied to the Director for re-opening of his claim and the Director refused his application. He appealed to the Torture Claims Appeal Board (“the Board”). The Board, by its Decision dated 10 August 2018 (“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 dated 15 November 2018 to apply for leave to apply for judicial review of the Board’s Decision.

3.By Order dated 10 March 2021 (“the Court’s decision”), the Court dismissed his application for the reason that the applicant had no reasonable prospect of success in his intended judicial review.

4.The applicant filed a summons dated 26 May 2021 applying for extension of time to appeal against the Court’s decision and for leave to adduce new ground of appeal.

5.In his affirmation in support of his application, he said that he did not receive the Court’s decision until at a later stage; that he was not aware of the time limit for appeal and that the Court’s decision was unfair as he was not given a chance to clarify his situations. The court’s letter with the Court’s decision was resent to the applicant on 9 April 2021 by post. It was not returned undelivered.

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.The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, [27(3)] and Nupur Mst v Director of Immigration [2018] HKCA 524 [15] that for extension of time application, the Court has to consider 4 factors: length of delay, reasons for delay, merits of substantive application and prejudice to respondent. I shall first consider the merits of the substantial application.

8.The Board had considered the merits of the applicant’s case, rejected his appeal and affirmed the Director’s Decision. The Board rejected his appeal for the reasons as set out below. The brackets are the references in the Board’s Decision.

(1) The applicant had not provided any evidence, medical or otherwise, to suggest that he was an alcoholic. [8]

(2) The Director had written to the applicant several times whilst he was being detained, advising him of his duty to provide information for his claim and that he was legally represented as well. [9]

(3) The Board had taken into consideration of the law (art. 4 Directive 2004/83/EC of 29 April 2004: A B C v Staatssecretaris van Veiligheid en Justitie (2014) EUECJ C-148/13) guidance, e.g. the UNHCR Handbook, the duty of the claimant to cooperate with the Director. [10]

(4) The Director had properly carried out his responsibility to ensure that the applicant was aware of his duty and the applicant had manifestly failed to cooperate with the Director, notwithstanding that he was legally represented. [11]

(5) The Board also did not accept the reasons given by the applicant for not submitting the NCF, duly completed.

9.There is no reason from the applicant to demonstrate that the Board’s Decision is wrong.

10.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.

The applicant was unrepresented.