Re Bind Ashoke Kumar

HCAL 1390/2021

[2022] HKCFI 283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1390 OF 2021

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

Date of Hearing:  18 January 2022

Date of Decision:  8 February 2022

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D E C I S I O N

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The application

1.This is an applicant for extension of time to appeal against the Court’s decision dated 2 November 2021 (“the Court’s decision”) on

(i)  rejecting the applicant’s application for judicial review of the Director’s Decision dated 12 July 2021 (the “Director’s Decision”), which rejected his application for a subsequent claim of HCAL 767 of 2018 (the “original claim”); and

(ii)  the Restrictive Proceedings Order (“RPO”) by the Court on the basis that the applicant had abused the proceedings by making his subsequent claim on the same or similar facts in support of his original claim, which had been adjudicated by the court.

The procedural history

2.The applicant is an illegal immigrant from India. He raised non-refoulement claim with the Immigration Department by written representation dated 1 January 2014 on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

3.His claim was rejected by the Director by a Notice of Decision dated 23 December 2016.

4.He appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 24 April 2018 (the “Board’s Decision”), the Board dismissed his appeal.

5.He applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 14 June 2019 (the “Court’s Order”).

6.He appealed against the Court’s Order to the Court of Appeal and his application was dismissed by the Court of Appeal on 30 September 2019.

7.His Notice of Motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 22 November 2019.

8.His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 18 February 2021.

9.He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 18 March 2021.

10.By the Director’s Decision, the Director refused his application.

Discussion

11.The applicant filed an affirmation dated 9 December 2021 for appeal against the RPO. This application is out of time as the deadline for appeal is 16 November 2021 (within 14 days after the Court’s decision, O.53, r. 3(4) of the Rules of the High Court). The Court requested the applicant to file another affirmation to state his reasons for the delay and the grounds in support of his application.

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

“… (i) Not get the letter, (ii) Nobody help me, (iii) I [illegible] not do my work myself…”

13.A hearing was fixed for the applicant to clarify his positions before the Court on 18 January 2022.

14.Before me, the applicant stated that he had no reason to support his application and he wanted to withdraw his application. When asked if he had any reasons in support of his application for appeal the RPO out of time, he said that he had no reason and he also wanted to withdraw his application.

15.In the circumstances, I dismiss the applicant’s application.

The applicant was unrepresented