Re Gurung Dilkumar

HCAL 2361/2018

[2022] HKCFI 3685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2361 OF 2018

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

Date of Decision:  20 December 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 staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director 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 Order dated 25 October 2022 (“the Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.The applicant filed a summons on 15 November 2022 applying for extension of time to appeal against the Court’s decision. In his affirmation in support of his application he said he is not satisfied with the Court’s decision because it is unfair and unreasonable. He still has problems in his country and he cannot go back at the time because his life is in danger.

Discussion

5.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, 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 his appeal is 8 November 2022. The applicant is late for 7 days. I shall consider the merits of his 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 clients.

9.The Director refused his application because his claim was unsubstantiated. He appealed to the Board.

10.The Board considered the relevant country of origin information (“COI”) [57]-[71].  It proceeded to determine the issue of credibility.  It found that the core of the applicant’s claim lacked credibility [74].  The Board refused to accept the applicant’s explanation as to why he did not report the company fraud to the police [75]-[76].  It also observed that the applicant gave inconsistent evidence in relation to the background of his clients [77]-[81].  Further, the Board rejected the applicant’s assertion that he came to Hong Kong with a specific purpose to seek protection [82].

11.In assessing the individual grounds, the Board found that the dispute was a private one without state involvement [86]; that his minor injuries did not attain a minimum level of severity [89]; and that the alleged harms, if any, were localized [97]-[98].

12.The above references refer to the Board’s Decision.

13.The reasons raised in paragraph 4 above are not related to the Court’s decision. Nor are they valid reasons against the Board’s Decision. The applicant has raised no valid reason to show that he has a realistic prospect of success in his intended appeal.

14.In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.

The applicant was unrepresented.