Kuljinder Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1154/2019

[2024] HKCFI 593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1154 OF 2019

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BETWEEN

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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 1 December 2023 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application.

4.By summons filed on 20 December 2023, the applicant applied for extension of time to appeal against the Court’s decision.

5.In his affirmation, the applicant submits that he did not receive the Court’s decision. According to the record, the Court’s decision was sent to the applicant’s last known address on 1 December 2023 without return from the Post Office. Pursuant to Order 65, rules 5 (2)(b) and 7(2) of the Rules of the High Court (“RHC”), it is deemed to be served on the next following day, not being a specified day such as Saturday or a general holiday^[1]. The Court’s decision is therefore deemed to be served on 4 December 2023 (Monday).

6.Order 53, rule 3(4), RHC provides that:

“Where an application for leave is refused by a judge or is granted on terms, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.”

7.Therefore, time for his appeal should expire on 18 December 2023 (14 days from 4 December 2023). He is only 2 days out of time.

Discussion

8.Having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing. .” See Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022.

9.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.

10.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].”

11.The applicant said that if refouled, he would be harmed or killed by members of the Shiromani Akali Dal (“SAD”) because he switched from SAD to join the Aam Aadmi Party (“AAP”).

12.The Director rejected his claim because it was not substantiated. He appealed to the Board.

13.Having considered the evidence, the Board found that the injuries sustained by the applicant failed to attain a minimum level of severity; that the allegations in relation to his friends’ sufferings lacked documentary evidence; that the SAD members were not public officials or acting in the public capacities; that the country of origin information showed that the AAP was quite successful in the recent elections and the police should not ignore any complaint of assaults against the applicant in his areas should it happen again; that state protection and internal relocation were both available options to the applicant.

14.The applicant has not raised any valid reason to challenge the Board’s Decision. He therefore fails to show that there is a reasonable prospect of success in his intended appeal.

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

The applicant was unrepresented.