RE MAQSOOD PAUL

HCAL 1504/2018

[2021] HKCFI 2122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1504 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 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 Order dated 4 June 2020 (the “Court’s decision”), the Court dismissed his application for the reason that there was no reasonable prospect of success in his intended application.

4.  The applicant filed a summons dated 17 August 2020 applying for extension of time to appeal against the Court’s decision.  The file was misplaced and the application was therefore unable to be dealt with within the usual time.

5.  In his affirmation in support of his application, he said that he did not receive the Court’s decision and he did not know the reason.  He also said that he did not understand English, so he was unable to understand the Court’s decision and he wanted it to be read over to him by an interpreter.  He further complained that he did not have legal representation at the hearing.  However, he considered that the court and authorities did not exercise caution and diligence in handling his case and it was procedurally unfair.

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.

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 Board considered the applicant’s evidence and came to a conclusion.  The Adjudicator stated in the Board’s Decision:

“42. …It is for the appellant to provide reasonably coherent detailed and generally credible evidence suggestive of his own personal and lived experience. This appellant failed to do so.

…

48. I have rarely encountered a witness whose testimony was so vague, garbled, incoherent, inconsistent with what he previously said, inconsistent with documents he had himself presented and so manifestly lacking in credibility…

…

69. I have accepted that there may be some credence in the appellant’s claim that he is a Christian, but beyond that I am not prepared to go.  He has failed to establish any of his other factual claims.”

The Adjudicator further found that the fact that the applicant was a Christian would not subject him to any risk of persecution as he was not a principal player of evangelical activities [71]; that an ordinary Christian would not be subjected to such risk [72]; and that even if he was subjected to discrimination, the applicant might have internal relocation [73].

10.  In Re: Sattar Abdul [2019] HKCA 613, 4 June 2019, the Court of Appeal held:

“13. … it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].”

11.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

12.  The applicant is unable to show that he has any reasonable prospect of success in his intended appeal.

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