RE AKRAM WASIM

HCAL 234/2019

[2022] HKCFI 3461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 234 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 8 January 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 1 November 2022 applying for extension of time to appeal against the Court’s decision. He did not file any affirmation or affidavit to explain why he was late.

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 1 February 2022. The applicant is late for 9 months and there is no explanation for his delay. I shall, nevertheless, 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 the members of All India Trinamool Congress (“TMC”) as he refused to join them.

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 dismissed his appeal as they were unconvincing and lacked authenticity. The Board was not persuaded that the TMC people would ask the applicant to join them after the election and did so without the applicant’s alleged vast social network. Even on the applicant’s alleged incidents, the Board found that the TMC people did not intend to seriously harm the applicant given the minor injuries they inflicted on him [20]-[24]. The Board also found his stories of coming back and forth between Hong Kong and India unrealistic and that there was no credible evidence why the TMC people would focus on him so extensively [25]-[34]. Further, the Board placed little weight on his hearsay evidence [35]-[36]. In any event, the Board found that there was no state involvement [38]-[40] and that internal relocation to cities like New Delhi was available to him [52]-[55]. Thus, the Board rejected his claim on the applicable grounds. The references refer to the Board’s Decision.

11.  The applicant has raised any 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.