Case Document

100%Judiciary

HCAL 2946/2018

[2021] HKCFI 2121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2946 OF 2018

_____________

RE:

JALLOW MOMODOU Y

Applicant

_____________

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

Date of Decision: 9 August 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, by his Decision, 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 7 January 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 11 March 2020 applying for extension of time to appeal against the Court’s decision. The file was misplaced and the application was therefore unable to be dealt with within the usual time.

5.In his affirmation in support of his application, he said that he lacked knowledge and had insufficient resources.

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 AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

8.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].”

9.The Board considered the applicant’s evidence and it concluded the facts below; the references are those in the Board’s Decision.

(1) Considering the evidence, the Board found that the applicant had only made bare assertions whose reliability and authenticity could not be tested and he presented no objective proof to support them [99].

(2) The applicant produced hearsay evidence [103 & 182].

(3) The Board further tested his evidence by comparing his evidence to the Immigration Officer and at the hearing and the fact that he had made admission at the hearing but refused to answer a question [104].

(4) The applicant was evasive in answering the questions, thus reducing his credibility [161].

(5) The applicant did not produce any evidence to support his beliefs that he would be harmed if he returned to Gambia; that the government would still be interested in him after four years of his departure; that he could not relocate himself [116].

(6) The government through the NIA had never inflicted any physical harm on him and the threats he alleged was only hearsay from his brother [117].

(7) There was no evidence to show that state protection was not available to him [146].

(8) There was no evidence that the government was involved as he was able to obtain a passport and leave Gambia without any problem [126].

(9) The applicant would not be subjected to any harm if he returned to Gambia [128].

10.The applicant 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.