Re Hermoza Emerito Franco

HCAL 2201/2018

[2022] HKCFI 2129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2201 OF 2018

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

Date of Decision: 27 July 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 for remaining in Hong Kong without permission. He lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration. He appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, his appeal was dismissed by the Board.

2.The applicant filed Form 86 for application for leave to apply for judicial review of the Board’s Decision.

3.By Form CALL-1 dated 23 February 2022 (“the Court’s decision”), the Court dismissed his application. The deadline for him to file notice of appeal for appeal is 14 days after the Court’s decision.[1]

4.The applicant filed a summons on 23 June 2022 together with his affirmation in support of his application for extension of time to file the notice of appeal.

5.In his affirmation, he said he did not receive the Court’s decision within 14 days.

Discussion

6.Pursuant to Order 32, rule 11 and 11A of the RHC[2], 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. 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 the New People’s Army (“NPA”) because of his intention to quit KADENA, a group formed under NPA.

10.The Director refused his claim for the reason that his claim was not substantiated. He appealed to the Board.

11.The Board found that the applicant’s account in relation to the assassination of the political figures vague and superficial [30]-[33]; that the applicant’s claim of being the target because the KADENA saw him as a traitor did not sit well with common sense [34]-[35]; that the applicant’s allegation that the three accidents were all caused by the KADENA members were pure speculations without evidential support [40]; and that the country of origin information suggested that state protection and internal relocation were available to him [41]. For these reasons, the Board rejected the applicant’s claim on all applicable grounds.

12.There is no valid reason to challenge the Board’s Decision. Nor has he raised any valid reason to show that the Board or this Court is in error.

13.There is therefore no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

14.I refuse to extend time for him to file the notice of appeal. Accordingly, the application is dismissed.

The applicant was unrepresented.