RE SHAHID MUHAMMAD

HCAL 947/2021

[2022] HKCFI 2362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 947 OF 2021

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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 remaining in Hong Kong without permission 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 26 August 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. The deadline for his to file his notice of appeal is within 14 days after the Court’s decision[1].

4.  The applicant filed a summons on 12 July 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said he could not take out the application for appeal on time.

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. 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 the Shia people because he insisted on creating nuisance to them by enquiring them for the whereabouts of his father, whom he believed to have been kidnapped by them.

10.  The Director found that his claim was not substantiated. He appealed to the Board. He did not appear before the Board on the hearing date on 23 July 2020. The Board wrote to him and demanded explanation for his absence. He did not provide the Board with any explanation. The Board proceeded to assess his appeal.

11.  The adjudicator refused to accept the face value of his evidence without clarification. The burden being on him to prove his case, his absence had rendered impossible for the adjudicator to test his evidence, the adjudicator therefore found that he had not established any of the facts he had asserted. In the circumstances, there is no factual basis in support of his claim. See paragraphs 27-40 of the Board’s Decision. On this basis, the Board dismissed his appeal.

12.  The applicant has no 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 his to appeal and I dismiss his application.