Re Kumar Gnanasekar

HCAL 760/2019

[2022] HKCFI 3116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 760 OF 2019

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

Date of Decision: 27 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, 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 21 March 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 against the Board’s Decision.

4.The applicant filed a summons on 28 September 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said the Court’s decision is unfair as he was not given an oral hearing and he only received the Court’s decision on 19 August 2022. According to the record, the Court’s decision was sent to his last known address on 21 March 2022 without return from the Post Office. The Applicant claimed he had not received it and the Court’s decision was re-sent to him on 19 August 2022 when he was in custody in Tai Tam Gap Correctional Institution.

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 on 4 April 2022. 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 father’s three business partners (“the Partners”) because of a default in loan payments.

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

10.He was absent at the hearing of the Board. The Board proceeded to consider the merits of his case and found that the applicant’s account was untruthful in light of the applicant’s immigration history, the fact that he was a repeated offender [29]-[37], as well as the incredulous nature of the material aspects of his claim. The references refer to the Board’s Decision.

11.He was absent at the Board’s hearing. He did not request an oral hearing before the Court. His application was therefore dealt with on paper in accordance with Order 53, rule 3(3) of the RHC.

12.There is no valid reason from the applicant to show that there is any realistic 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.