RE ABDULLAH MUHAMMAD

HCAL 2050/2018

[2022] HKCFI 1754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2050 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 4 April 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 19 April 2022 (within 14 days after such order).

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[1], 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. The applicant has given no good explanation for his delay. However, 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 some smugglers.

10.  By the Director Decision, the Director refused his claim on Persecution risk, Torture risk, BOR3 risk and BOR2 risk for the reason that his claim was not substantiated. He appealed to the Board.

11.  The Board considered the applicant’s claim and his evidence. It observed that the applicant’s manner in giving oral testimony was vague and incoherent. The oral evidence was inconsistent with the previous written statements and the applicant was unable to clarify these inconsistencies [29]. The Board noticed that the centerpiece of the applicant’s claim was the murder of his brother. However, the applicant was mistaken about the name of his brother [31]. Further, the Board noted that the court documents submitted by the applicant did not support the part of his claim on lodging a court case against the police [33]-[36]. When seeking clarifications about the details of the court case, the Board found that the applicant’s evidence was incoherent and did not make sense at all [39]-[43]. Thus, the Board concluded that he was not a credible witness. For this reason, the Board rejected his claim on all applicable grounds and dismissed his appeal. The references refer to the Board’s Decision.

12.  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.

13.  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.