RE DAPTARI MOHAMMAD NAWEM

HCAL 2363/2018

[2022] HKCFI 1625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2363 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 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 21 January 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. The deadline for her to file her notice of appeal is 5 February 2022 (within 14 days after such order).

4.  The applicant filed a summons on 17 May 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of her application, he said he did not receive the Court’s decision within 14 days. According to the court’s record, the Court’s decision was sent to the applicant’s last known address on 21 January 2022 by ordinary post. He is deemed to receive the same on the next following day, not being a specified day such as Saturday or a general holiday.[1] He is therefore deemed to have received the Court’s decision on 25 January 2022 (22^nd and 23^rd being Saturday and general holiday).

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. 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 members of Awami League (“AL”) and the government’s special force Rapid Action Batallion (“RAB”) because of his affiliation with Jamaat-e-Islami (“JEI”). He also feared that JEI members would harm or kill him because he took some money away from them.

10.  The Director refused to accept his version of events as credible [19]-[23] and found that the level of risk of him being harmed or killed upon refoulement was assessed to be low [24]-[28]; that state protection would be available to him [29] and that internal relocation was an option open to him [30]-[33]. The references refer to the Director’s Decision. He appealed to the Board.

11.  He refused to answer the questions from the adjudicator after being warned of the consequences. He Board considered his evidence before it and found that his claim on the applicable grounds was not substantial and dismissed his appeal.

12.  The applicant is unable to set out any valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of the 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.