Re Shintu Paul

HCAL 2741/2018

[2021] HKCFI 2220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  2741 OF 2018

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

Date of Decision: 10 August 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, 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 30 June 2021 (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 19 July 2021 applying for extension of time to appeal against the Court’s decision.

5.In his affirmation in support of his application, he said that  he did not receive the Court’s order in time, so he did not appeal in time.

Discussion

6.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, 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.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board accepted that there was a land dispute between the applicant and KS and KS had threatened to kill him.  However, there was no credible evidence that KS took any steps to carry out the threats.  It therefore rejected the alleged attacks by KS on his father, his brothers and the applicant himself. [69-70]  The Board found that there were no substantial grounds for believing that, if refouled to India, the appellant would face a real risk of persecution [73]; that his life would be at real risk within BOR 2 risk [76]; that he would face a real risk of being subjected to torture under BOR 3 risk [81]; that he would be subjected to the Torture risk [84 & 88].  The Board also found that internal relocation was an option open to him [97].  The references are those in the Board’s Decision.

10.The applicant has not raised any issue that the Board was in error in arriving at its Decision and is therefore 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.

The applicant was unrepresented.