RE RAGAB FATHELBAB RAGAB ABDALLA

HCAL 1180/2018

[2021] HKCFI 3699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  1180 OF 2018

_____________

_____________

_____________

D E C I S I O N

_____________

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 8 March 2021 (the “Court’s decision”) and re-sent to the applicant on 12 April 2021, 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 2 December 2021 for appeal against the Order out of time.

5.  In his affirmation in support of his application, he said:

“ … please extend time for me 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.  The delay of over 7 months is significant and serious.  Nevertheless, 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 one of his customers if he returned to Egypt because he was not able to repay him the money due to his bankruptcy.

10.  The Director refused his claim for the reason that there were no substantial grounds for believing that there would be any real and substantial risk of him being harmed or killed by Mahmoud and his associates if he returned to Egypt [11]; that state protection would be available to him [14] and that internal relocation was an option open to him [15].

11.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out in paragraphs 50-75 of the Board’s Decision.  Below is a summary of its findings.

(1)     The applicant’s evidence was inconsistent and confusing and his claim to fear violence or imprisonment should he return to Egypt had no credibility.  The Board did not accept his claim. [47-60]

(2)     For the reason that the Board did not accept that he would be at risk of harm at the hands of Mahmoud or his brothers, the police or the Egyptian government if he returned to Egypt, it rejects his claim on the Torture risk, BOR 2 risk, BOR 3 risk and Prosecution Risk.

12.  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.

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.