Re Edi Subagio

HCAL 1412/2021

[2022] HKCFI 953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1412 OF 2021

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

Date of Hearing:  28 February 2022

Date of Decision:  13 April 2022

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D E C I S I O N

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The application

1.This is an application for extension of time to apply for leave to appeal against the Court’s decision dated 10 November 2021 (“the Court’s decision”) rejecting the applicant’s application for judicial review of the Director’s Decision dated 18 August 2021 (the “Director’s Decision”), which rejected his application for a subsequent claim of HCAL 1186 of 2018 (the “previous claim”). The Court had also imposed a Restrictive Proceedings Order (“RPO”) on him, prohibiting him from making further application or continuing with any existing proceedings without leave of the Court.

2.The deadline for the applicant to appeal against the Court’s decision is on 24 November 2021. The applicant’s affirmation lodged on 30 November 2021 for his appeal is therefore out of time for 6 days.

The procedural history

3.The applicant is an illegal immigrant from Indonesia. He raised non-refoulement claim with the Immigration Department by written signification on 12 August 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, Persecution risk under the Refugee Convention.

4.His claim was rejected by the Director by a Notice of Decision dated 30 August 2017.

5.He appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 21 June 2018 (the “Board’s Decision”), the Board dismissed his appeal.

6.He applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 15 February 2019 (the “Court’s Order”).

7.He appealed against the Court’s Order to the Court of Appeal and his application was dismissed by the Court of Appeal on 19 June 2019.

8.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 11 October 2019.

9.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 9 March 2021.

10.He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 19 April 2021.

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

12.By the Court’s decision, this Court rejected his application for judicial review of the Director’s Decision for the reason that he relied upon the similar facts in support of his previous claim for his subsequent claim, which amouts to an abuse of the court’s process. This Court therefore imposed RPO on him.

Application for appeal of the Court’s decision out of time

13.The delay is 6 days, which is not significant.

14.The Court shall, nevertheless, consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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. I shall first consider the merits of the case.

15.In Re Adumekwe Rowland Ejike [2019] HKCA 702 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].”

16.In his written submissions he has raised the following grounds in support of his application:

(1)  it is still dangerous for him to return to Indonesia;

(2)  the Director had used a cherry picking and biased formula to assess his case and rejected his subsequent claim;

(3)  the Director’s finding against his credibility is procedurally unfair or irrational;

(4)  the Director’s treatment of his evidence as hearsay evidence, giving less weight to it thoug totally ignoring it, is unfair because for non-refoulement claims, the applicant usually does not have statement evidence to support his case;

(5)  the Director should give him the benefit of the doubt for the hearsay evidence;

(6)  the Director has not taken a hoslistic approach in his assessment of the evidence instead of taking an isolated approach.

17.A hearing was fixed for the applicant to clarify his positions before the Court on 28 February 2022. However, he was absent without prior notice to the Court. The Court decided to deal with his application on paper.

18.Those grounds under paragraph 16 do not consititute valid reasons for his delay or for his intended appeal against the Court’s decision because they are his opinions or comments without evidence in support of them. They do not change the fact that he relies upon the facts in support of his previous claim for his subsequent claim, which is an abuse of the court’s proceedings.

19.In the circumstances, I find that there is no realistic prospect in the applicant’s intended appeal against the Court’s order. Accordingly, I dismiss the applicant’s application.

The applicant appeared in person, absent.