Re Karki Navaraj

HCAL 904/2019

[2022] HKCFI 3435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 904 OF 2019

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

Date of Decision:  24 November 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 3 May 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 26 October 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said that he did not receive the Court’s decision. According to the record, the Court’s decision was sent to the applicant at his last known address on 3 May 2022 without return.

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 17 May 2022 and the delay is about 5 months and 9 days. 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 members of Youth Force (“YF”).

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

10.Having considered the evidence, the Board refused to accept that the applicant would face any real risk of harm if returned to Nepal [47]-[48]. Thus, the Board rejected the applicant’s claim and dismissed his appeal. The references refer to the Board’s Decision. The references refer to the Board’s Decision.

11.The applicant has failed to raise any valid reason to show that there is any realistic 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.