Re Sherpa Nima

HCAL 1060/2019

[2022] HKCFI 3021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1060 OF 2019

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

Date of Decision:  20 October 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 staying in Hong Kong without permission 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 9 August 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 16 September 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he did not get the Court’s decision. According to the record, the Court’s decision was sent to him at his last known address on 9 August 2022.

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.The Court shall 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. The deadline for appeal is 23 August 2022 and the delay is about 3 weeks. Nevertheless, I shall consider the merits of the case.

7.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].”

8.The applicant claimed that, if refouled, he would be harmed or killed by his job agent who was a member of the Maoist.

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

10.Having considered all the evidence, the Board concluded that the applicant’s non-refoulement claim was not substantiated. In particular, the Board found that the allegation that the Maoist was a terrorist group contradicted with the objective information; that the relative of the job agent would not have the claimed influence; that the threats were merely empty threats; that there was no urgency for the applicant to leave Nepal; that there was no evidence of connection between the relative and local police; and that it was likely that he intended to come to Hong Kong for employment instead of for protection [22]. Further, the Board considered the country of origin information and concluded that state protection and internal relocation were both available to the applicant [26]-[28]; [42]-[45]. The references refer to the Board’s Decision.

11.It is clear that the Board dismissed his appeal with the reasons above. In the applicant’s affirmation in support of his application for extension of time to appeal, he had not set out any reason to show that he has any reasonable prospect of success in his intended appeal.

12.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.