RE MAHMOOD WAJID

HCAL 1778/2018

[2020] HKCFI 1268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1778 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 rejected his application and he appealed to the Torture Claims Appeal Board/Non‑Refoulement claims Petition Office (“the Board”).  Having considered his evidence, the Board, by its Decision dated 30 July 2018 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court, the applicant filed Form No 86 to apply for leave to apply for judicial review of the Board’s Decision.  He had appeared before this Court.  By Order dated 20 June 2019 (“the Court’s decision”), I refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review. 

3.  The applicant intends to appeal to the Court of Appeal against the Court’s decision.  However, he is out of time under Order 53, rule 3(4), RHC.  The deadline for him to appeal is 4 July 2019.  He took out a summons dated 7 November 2019 for time extension for his appeal.

4.  A hearing was fixed for him to attend court for his application on 9 January 2020 and he appeared before the Court.

The applicant’s affirmation

5.  The applicant filed an affirmation in support of his application.  In his affirmation he simply asked for extension of time for him to appeal the Court’s decision on the grounds that he was denied the chance to make submission to the Board.  The reason for his delay in filing his appeal was that he was detained in prison and he did not receive the Court’s Form Call‑1.

Discussion

6.  The applicant appeared before me.  He repeated his reasons that he had put in his affirmation.  He further said that between April and September 2019, he was detained in prison.  After discharge from prison, he lived in his friend’s place.  He did not update the court’s record of his new address.

7.  He further said that since the Board’s Decision, he had obtained other documents in support of his claim.  He wanted the Court to consider his documents.

8.  The Court of Appeal in Re Adumekwe Rowland Ejike [2019] HKCA 702 28 June 2019 held

“19. The prospect of success of the intended appeal is important; the court will not grant extension of time for a hopeless appeal to be pursued.”

9.  As to his complaint that he was not given a chance to make submission to the Board, he admitted that he was late for an hour for the hearing before the Board.  The Board proceeded to consider the merits of his case and rejected his evidence given to the Director.  The Board was entitled to do so under section 15 of Schedule 1A of the Ordinance.

10.  If the applicant wished to Board to hear him and consider the fresh documents he obtained, he should make his application to the Board for such purposes.  It will be for the Board to consider his application and make its decision.  However, the applicant did not take out the application.

11.  The Board had considered the applicant’s case and the evidence in the hearing bundle.  In paragraph 55 of the Board’s Decision, the Board identified the grounds of his claim.  In paragraph 56, the Board said:

“The Appellant’s evidence relating to the facts on which his claim is based amounts largely to inconsistent and unreliable evidence. The 5 FIR [First Information Report] he submitted did not support his claim of the feared risk of harm from the four enemies he claimed in his evidence. To the contrary, the FIR showed that his evidence was inconsistent and unreliable….”

See paragraphs 57-64 of the Board’s Decision as well.

12.  I do not consider appropriate for this Court to usurp the Board’s duty of making investigation into the facts of the case by studying the fresh documents.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. 

13.  In the circumstances, I find that the applicant is unable to show that he has a reasonable prospect of success in his intended appeal against my decision.  Accordingly, I dismiss his application.