RE AFZAAL MUHAMMAD

HCAL 290/2019

[2021] HKCFI 3786

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 290 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 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 November 2021 (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.

4.  The applicant filed a summons on 22 November 2021 for appeal against the Order out of time. His application is 4 days’ late.

5.  In his affirmation in support of his application, he asked for an extension of time without specifying any ground in support of his application.

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 success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall, first of all, consider the prospect of success of the intended appeal.

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.  He claimed that if refouled, he would be harmed or killed by a Shia Muslim named Riaz Qadir who was an active member of the Pakistan People’s Party.

10.  The Director rejected his claim and found that it was only a personal dispute and the state was not involved; that state protection was available to him and that internal relocation was an option open to him. He appealed to the Board.

11.  The Board affirmed the Director’s Decision. It further found that he had no evidence to show that he would have serious harm if he returned to his country; that Riaz Qadir would not be interested in him after a period of 11 years.

12.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13(1) .… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

13.  The applicant has not been able to set out any valid ground to challenge the Board’s Decision.  Nor can he point out any error on the part of this Court in the assessment of his application.

14.  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.