Case Document

100%Judiciary

HCAL 762/2019

[2022] HKCFI 74

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 762 OF 2019

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RE:

PIYARA MASIH

Applicant

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Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

7 January 2022

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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 Form CALL-1 dated 22 November 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review.

4.The applicant filed a summons on 14 December 2021 for appeal against the Court’s decision out of time.

5.In his affirmation in support of his application, he said:

“… I do not get the High Court Judgment timely. But I want to apply [appeal].”

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. The delay of about 8 days is not significant and serious. Nevertheless, I shall consider the merits of the case.

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 applicant claimed that, if refouled, he would be harmed or killed by Sikh leader as he refused to convert back to Sikh after he become a Christian.

10.The Director found that the level of risk of him being harmed or killed by the Sikh leaders upon refoulement was assessed to be low [21]-[22]; that state protection was available to him [23] and that internal relocation was an option open to him [24]. In the Notice of Further Decision dated 18 November 2016 (“the Director’s Further Decision”), the Director also refused his claim on BOR2 risk. See the Director’s Decisions.

11.He was late in filing the notice of appeal with the Board. The Board considered whether there was special circumstance to exercise its discretion to allow the applicant’s late filing. The Board had also taken into account of the requirement of considering the merits of the applicant’s case under the guidance of the Court of Appeal in Karamjit Singh [2018] HKCA 460 and the manner in which the assessment of the merits of the case should be conducted as held by the court in Satbinder Singh v Wesley Wong & Ors HCAL 133/2015. It is apparent that the Board had considered the Director’s Decision and the Director’s Further Decision before it said in paragraph 24: ‘… I consider that the merits of his non-refoulement claim are insufficient to weigh in favour of the discretion to allow the late filing. There are no other matters known to the Board or revealed by the factual basis of the Petitioner’s claim.’ See the Board’s Decision.

12.The applicant has not been able to set out any valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of this Court in the assessment of his application.

13.There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for him to appeal and dismiss his application.