RE KHAN AJAB

HCAL 761/2019

[2022] HKCFI 423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 761 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 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 29 November 2021 (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 application.

4.  The applicant filed a summons on 20 January 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said:

“… The decision made by the High Court Judge K.W. Lung has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, … me unaware of the rules regarding the limit [for appeal]. I never received any decision made by the High Court on my residential address ….”

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.  The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015:

“It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7^th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5^th ed) at §18.18.1)….” [67]

8.  The applicant’s grounds in support of his non-refoulement claim is that, if refouled, he would be harmed or killed by members of Pakistan Muslim League N (“PMLN”). 

9.  The Director found that the level of risk of him being harmed or killed by the four enemies upon refoulement was assessed to be low [11]-[14]; that state protection was available to him [15]-[20] and that internal relocation was an option open to him [21]-[24]. He appealed to the Board.

10.  The Board considered his written evidence and his oral testimony before it.  It found that there were alarming inconsistences. In light of the significant inconsistences and implausibility in the material aspects of the applicant’s claim, the Board refused to accept that he had or would suffer any harm if he returned to Pakistan [58]-[62].  Thus, it rejected the applicant’s claim on all applicable grounds and dismissed his appeal [63]-[66].

11.  The Court’s decision was sent to his last known address on 29 November 2021. It has not been returned undelivered. He did not request an oral hearing. Under Order 53, rule 3(3) of the RHC, the court may deal with his application on paper. The fact that he was not aware of the time limit for appeal is not a valid ground. He may make enquiry with the High Court if he so wished.

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 this 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.