Re Sanjaya Kumar Magar

HCAL 2819/2018

[2021] HKCFI 2400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2819 OF 2018

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

Date of Decision:  3 September 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 dated 30 November 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 to apply for leave to apply for judicial review of the Board’s Decision.

3.By Order dated 3 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 26 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 decision and the legal procedures are complicated.  He had to seek assistance from his friend.  He considered that the Court should explain the Court’s decision to him as he does not understand English.

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 for the reasons that the Board found that the applicant’s fears and the risks were unreal and there was no factual basis to support his claim under the various heads of risks, including the BOR 2 risk.  The grounds that he had raised for his application for leave to apply for judicial review had been considered by the court, which found that there was nothing that showed that there was any error of law or procedural unfairness, unreasonableness or irrationality in the findings and decision of the Board.

10.The Court of Appeal has held in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019:

“13. … it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].”

11.The applicant has not raised any issue that the Board was in error in arriving at its Decision or the court had made any mistakes in its decision.  He is therefore unable to show that he has any reasonable prospect of success in his intended appeal.

12.In the circumstances, I refuse to extend time for his appeal.  Accordingly, I dismiss his application.

The applicant was unrepresented.