RE ALAM IMTIAZ

HCAL 2196/2018

[2022] HKCFI 3091

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2196 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 for staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decisions, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). Having considered his evidence, the Board, by its Decisions (respectively called the “Board’s First Decision and the Board’s BOR 2 Decision”), rejected his appeal and affirmed the Director’s Decisions.

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 BOR 2 Decision only.

3.  By Form CALL-1 dated 1 March 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 against the Board’s BOR 2 Decision.

4.  The applicant filed a summons on 22 September 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said that he did not want to return to his country because his life was still in danger.

Discussion

5.  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.

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 appeal is on 15 March 2022. The delay is about 6 months. His application can be dismissed as he has not given any explanation for the delay. Nevertheless, I shall consider the merits of the 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 Mehboob Alam and Sarwar Alam, his elder brothers, for a land dispute.

9.  By way of the Director’s First Decision, the Director refused the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. By way of the Director’s Second Decision, the Director refused the applicant’s claim on BOR 2 risk for the same reason. The applicant appealed the Director’s First Decision and Second Decision to the Board.

10.  Having considered the applicant’s evidence, the Board dismissed his appeal on the Director’s First Decision. The Board assessed the applicant’s claim on individual grounds. It found that the applicant’s alleged injuries did not attain the level of severity which would amount to torture [45]-[48]; that it was a family dispute without state involvement or state acquiescence [49]-[67]. Further, the Board found that state protection and internal relocation were available to the applicant [68]-[97]. For these reasons, the Board rejected the applicant’s claim on the grounds of Persecution risk, Torture risk and BOR3 risk. References refer to the Board’s First Decision.

11.  As to the applicant’s appeal against the Director’s Second Decision, the Board noted that the applicant had not provided additional information for his claim on BOR 2 risk before the Director. Before the Board, the applicant’s evidence was that he had no fear of his right to life being at risk on his return to this country [40]. Considering all the available evidence, by the Board’s BOR 2 Decision, the Board rejected his claim on BOR 2 risk and dismissed his appeal against the Director’s Second Decision. References refer to the Board’s BOR 2 Decision.

12.  There is no valid reason from the applicant to show that there is any realistic prospect of success in his intended appeal.

13.  In the circumstances, I refuse to extend time for the applicant to file his notice of appeal. Accordingly, I dismiss his application.