RE AHMED TOSIF

HCAL 1244/2021

[2022] HKCFI 713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1244 OF 2021

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D E C I S I O N

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The application

1.  This is an application for extension of time to apply for leave to appeal against the Court’s decision dated 8 October 2021 (“the Court’s decision”) rejecting the applicant’s application for judicial review of the Director’s Decision dated 15 June 2021 (the “Director’s Decision”), which rejected his application for a subsequent claim of HCAL 1102 of 2017 (the “previous claim”). The Court had also imposed a Restrictive Proceedings Order (“RPO”) on him, prohibiting him from making further application or continuing with any existing proceedings without leave of the Court.

The procedural history

2.  The applicant is an illegal immigrant from India. He raised non-refoulement claim with the Immigration Department on 25 June 2014 on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

3.  His claim was rejected by the Director by a Notice of Decision dated 12 April 2016 and a Notice of Further Decision dated 4 July 2017.

4.  He appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 24 November 2017 (the “Board’s Decision”), the Board dismissed his appeal.

5.  He applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 31 August 2018 (the “Court’s Order”).

6.  He appealed against the Court’s Order to the Court of Appeal and his application was dismissed by the Court of Appeal on 30 May 2019.

7.  His Notice of Motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 7 August 2019.

8.  His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 8 October 2020.

9.  He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 20 October 2020.

10.  By the Director’s Decision, the Director refused his application.

11.  By the Court’s decision, this Court rejected his application for judicial review of the Director’s Decision for the reason that he relied upon the similar facts in support of his previous claim for his subsequent claim, which amouts to an abuse of the court’s process. This Court therefore imposed RPO on him.

Application for appeal of the Court’s decision out of time

12.  The applicant filed affirmation on 7 January 2022 for appeal against the Court’s decision. This application is out of time as the deadline for appeal is 22 October 2021 (within 14 days after the Court’s decision, O.53, r. 3(4) of the Rules of the High Court). The delay is more than 2 months, which is significant.

13.  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. I shall first consider the merits of the case.

14.  In Re Adumekwe Rowland Ejike [2019] HKCA 702 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].”

15.  In his affirmation filed on 25 January 2022, he said:

“ … At this moment India’s political situation is very worst, specially Muslim are killed by Hindu politicians … For no reason Hindus are killing Muslim, specially young people who can be future leader. The High Court did not see any difference. My previous claim was not about Hindu torture. My present claim is totally about Muslim and Hindu problem….I am sure if I return, I will be killed Hindu politicians, because I am a true Muslim.”

16.  A hearing was fixed for the applicant to clarify his positions before the Court on 12 February 2022.

17.  Before me, the applicant said other than what he had said in his affirmation above, he had nothing to add.

18.  Those grounds do not consititute valid reasons for his delay or for his intended appeal against the Court’s decision because they do not change the fact that he relies upon the facts in support of his previous claim for his subsequent claim, which is an abuse of the court’s proceedings.

19.  In the circumstances, I find that there is no realistic prospect in the applicant’s intended appeal against the Court’s order. Accordingly, I dismiss the applicant’s application.