RE HASSAN MUSSA ALLY

HCAL 1876/2018

[2022] HKCFI 1756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1876 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 by overstaying 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 Decision (the “Board’s 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 Decision.

3.  By Form CALL-1 dated 23 February 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 him to file his notice of appeal is 10 March 2022 (within 14 days after such order). The Court’s Registry was closed between 7 March 2022 to 11 April 2022, such period is suspended for the counting of time for the appeal.

4.  The applicant filed a summons on 24 May 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said he wanted to challenge the Court’s decision and he asked for an extension of time to do so.

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 members of Chama Cha Mapinduzi (“CCM”).

10.  By the Director’s First and Second Decisions, the Director refused his claim on Persecution risk, Torture risk, BOR3 risk and BOR2 risk for the reason that his claim was not substantiated. The references refer to the Director’s Decision. He appealed to the Board.

11.  The Board noticed several inconsistences in the applicant’s versions of events in oral examination and those in his non-refoulement claim form. It found that the inconsistences and matters that were far from common senses significantly undermined the applicant’s credibility [27]-[38]. In any event, internal relocation was available to the applicant as the alleged attack happened six years ago and the CCM people might no longer have interest in him [39]-[46] and the country of origin information suggested that state protection was also available to the applicant [47]-[49]. Thus, the Board rejected his claim on all applicable grounds and dismissed his appeal [50]-[69]. The references refer to the Board’s Decision.

12.  The applicant is unable to raise 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.