RE AHMED FAIZ

HCAL 1072/2019

[2022] HKCFI 3219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1072 OF 2019

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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 Decisions, 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 Decisions.

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 1 September 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 10 October 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application without giving any reason for his delay or ground.

Discussion

6.  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.

7.  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 15 September 2022 and the delay is 25 days. I shall consider the merits of the case.

8.  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].”

9.  The applicant claimed that, if refouled, he would be harmed or killed by three loan sharks whose names were Feroze, Zahid and Zamal.

10.  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.

11.  The Board, having considered the applicant’s evidence at the hearing, found that that the applicant was unable to provide documentary proof of the loan [30]. It also noted that the applicant was unable to give details in relation to the terms of the loan. He also failed to report to the police that he had been charged with illegal interest rate, which made the Board cast doubt on the credibility on this aspect [31]. The applicant was also unable to explain why he could not borrow the sum from other sources given the high interest rate from the loan sharks [32]. Besides, he only gave a brief and incoherent account as to why he failed to repay the loan [33]. Meanwhile, the Board also observed that the figures, including the one for the interest rate and the interest that he already paid, could not stand after a detailed scrutiny [34]. As a result, the Board refused to accept that he had established a perceived risk of harm due to his outstanding debts.

12.  Even taking the applicant’s claim to the highest, the Board also found that the conducts of the loan sharks indicated that they did not have any intention to cause serious harm or even kill the applicant. The applicant’s evidence on their background and association with the political group was also vague and unpersuasive [39]-[44]. Further, the level of harm sustained by the applicant in the past was not serious [45]. In any event, state protection and internal relocation were both available to the applicant [46]-[50].

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

14.  The applicant has failed to raise any valid reason to show that there is any realistic prospect of success in his intended appeal.

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