RE ALI MOHASIN

HCAL 1069/2019

[2023] HKCFI 58

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1069 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 by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director 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 Order dated 20 September 2022 (“the Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons on 25 November 2022 applying for extension of time to appeal against the Court’s decision. In his affirmation in support of his application, he said that he did not agree with the Court’s judgment.

Discussion

5.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

6.  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. The deadline for his appeal is 4 October 2022. The applicant is late for 1 month and 21 days. I shall consider the merits of his case.

7.  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 Kaosar, Manik and other members from the Awami League (“AL”). He also feared that he would be arrested by the local police.

9.  The Director refused his application because his claim was unsubstantiated. He appealed to the Board.

10.  Having considered the applicant’s evidence, the Board noted that the applicant provided inconsistent evidence as to the two assaults [68]-[69]. In addition, the Board listed out the applicant’s evidence which were based purely on hearsay information and speculations [70]-[74]. Further, the Board found that state protection would be available to the applicant and that the claimed risk of harm did not involve any state actors [76]-[78]. In any event, internal relocation was also viable [79]-[81]; [89]. As a result, the Board found that the applicant’s claim lacked credibility. The references refer to the Board’s Decision.

11.  The applicant has raised no valid reason to show that he has a realistic prospect of success in his intended appeal.

12.  In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.