RE RASUL GOLAM

HCAL 230/2021

[2022] HKCFI 1969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 230 OF 2021

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D E C I S I O N

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1.  The applicant is an illegal immigrant for remaining in Hong Kong without permission. He lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration. He appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, his appeal was dismissed by the Board.

2.  The applicant filed Form 86 for application for leave to apply for judicial review of the Board’s Decision.

3.  By Form CALL-1 dated 10 May 2022 (“the Court’s decision”), the Court dismissed his application. The deadline for him to file notice of appeal for appeal is 14 days after the Court’s decision.

4.  The applicant filed a summons on 7 June 2022 together with his affirmation in support of his application for extension of time to file the notice of appeal.

5.  In his affirmation, he said that he did not know the time limit for appeal as he is not legally represented. He further said that the Court’s decision was not fair as the Court did not give him the chance to clear his situation in his country.

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. 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 his three creditors for default of repayment of loans. Also, he claimed that he would be harmed or killed by the populace of Hindu community as he is a Muslim.

10.  The Director refused his claim for the reason that his claim was not substantiated. He appealed to the Board.

11.  By the Board’s Decision, The Board had considered the evidence in his Non-refoulement Claim Form, the country of origin information and his oral evidence. The applicant also said that he would have further evidence from India. But he did not produce such evidence at the hearing. Having considered his evidence, the Board found that his factual evidence in support of his claim was not persuasive, unreasonable and implausible. See paragraphs 127 to 174. It came to the conclusion that it did not accept the facts of the partnership; that he had borrowed the loans from the creditors; that the creditors had threatened and assaulted him; that he was kidnapped by Firoz and his men; that he had moved to stay in different places that he had difficulties in living in harmony with the Hindu majority and that he would face any risk or danger if he returned to India. See paragraph 174 of the Board’s Decision. The Board also agreed with the Director that internal relocation was an option open to him [188 & 189]. Also, the Board found that there was no complicity of the state in the incidents even if it accepted the core of the applicant’s narrative to be true, which it did not accept [190-193]. The references refer to the Board’s Decision.

12.  The reasons in the applicant’s affirmation are not good reasons from the application for the delay. Nor has he raised any valid reason to show that the Board or this Court is in error.

13.  There is therefore no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

14.  I refuse to extend time for him to file the notice of appeal. Accordingly, the application is dismissed.

15.