RE HAFEEZ MUHAMMAD

HCAL 2733/2018

[2022] HKCFI 1713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2733 OF 2018

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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 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 (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 Form CALL-1 dated 28 March 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. The deadline for him to file his notice of appeal is 12 April 2022 (within 14 days after such order). The Registry was closed between 7 March 2022 and 11 April 2022. The deadline was therefore postponed to 26 April 2022 (14 days after 11 April 2022).

4.  The applicant filed a summons on 23 May 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said he had missed the time to appeal.

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.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (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 consider the merits of the case.

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 Pakistan Muslim League (Nawaz) (“PMLN”) because they wanted to occupy the applicant’s business.

9.  The Director refused his claim for the reason that the level of risk of harm from the three members of PMLN was assessed to be low because (i) after assessing the applicant’s evidence, the alleged past ill-treatment did not indicate a likelihood of future risk of harm [13]-[16]; (ii) state protection was available to him [17]-[23]; and (iii) internal relocation was an option open to him [24]-[28]. The references refer to the Director’s Decision. He appealed to the Board.

10.  Viewing the evidence in totality, the Board found the applicant’s evidence to be unsatisfactory [39]. In any event, internal relocation was available to the applicant [40]-[42]. For these reasons, the Board rejected the applicant’s claim on all applicable grounds and dismissed his appeal. The references refer to the Board’s Decision.

11.  The applicant is unable to raise any valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of the Court in the assessment of his application.

12.  There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for him to appeal and dismiss his application.