Re Mana Wila Mudiyanselage Don Indunil Susitha

HCAL 205/2019

[2022] HKCFI 2430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 205 OF 2019

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

Date of Decision: 30 August 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 by remaining in Hong Kong without permission and he applicant is an illegal immigrant for remaining in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decisions, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). Having considered his evidence, the Board, by its Decisions (the “Board’s Decision”), rejected his appeal and affirmed the Director’s Decisions.

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 19 April 2022 (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 27 July 2022 for appeal against the Court’s decision out of time. In his affidavit in support of his application, he said that he did not have a hearing for his application.  He has some supporting documents to be submitted.

Discussion

5.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.

6.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].”

7.I shall therefore consider the merits of his case. The applicant claimed that, if refouled, he would be harmed or killed by Upali Tennakoon.

8.By way of the Director’s Decisions, the Director refused the applicant’s claim for the reason that his claim was not substantiated. The applicant appealed to the Board.

9.The Board had made 2 Decisions. The Board’s First Decision was on his claim on Torture risk, BOR 3 risk and Persecution risk and the applicant was legally represented. The Board found that that the applicant failed to explain certain inconsistencies in his evidence; that there was no acceptable evidence why internal relocation was not available to him; and that no explanation was given as to why he failed to lodge his torture claim promptly [61]-[80]. The Board found that the applicant had not established his claim on those three grounds. The reference refers to the Board’s First Decision.

10.The Board’s Second Decision was on his claim on BOR 2 risk. The applicant had submitted additional information and supplemental submissions put before the Director. It finally found that there was no evidence that there was a personal and real risk of him being subjected to BOR 2 risk on his return to Sri Lanka.

11.It is clear that the Board dismissed his appeal as it did not accept the the applicant’s facts in support of his claim after careful evaluation of the evidence before it and it was entitled to do so. In the applicant’s affirmation in support of his application for extension of time to appeal, he complained that the Court made the decision without a hearing for him. This was done pursuant to Order 53, rule 3(3) of the RHC^[1]because he did not request an oral hearing.

12.The applicant has not set out any reason to show that he has any reasonable prospect of success in his intended appeal.

13.In the circumstances, I refuse to extend time for the applicant to file his notice of appeal.  Accordingly, I dismiss his application.

The applicant was unrepresented.