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HCAL 942/2019
[2022] HKCFI 2146
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 942 OF 2019
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| RE: |
Muhammad Aslam |
Applicant |
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Before: Deputy High Court Judge K.W. Lung in Chambers
Date of Decision: 28 July 2022
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D E C I S I O N
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1. The applicant is an illegal immigrant for remaining in Hong Kong without permission. He lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration. He appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, his appeal was dismissed by the Board.
2. The applicant filed Form 86 for application for leave to apply for judicial review of the Board’s Decision.
3. By Form CALL-1 dated 9 June 2022 (“the Court’s decision”), the Court dismissed his application. The deadline for him to file notice of appeal for appeal is 14 days after the Court’s decision.[1]
4. The applicant filed a summons on 4 July 2022 together with his affirmation in support of his application for extension of time to file the notice of appeal.
5. In his affirmation, he said there was no oral hearing for his application.
Discussion
6. Pursuant to Order 32, rule 11 and 11A of the RHC[2], 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 the Sunni sect in Pakistan.
10. The Director refused his claim for the reason that his claim was not substantiated. He appealed to the Board.
11. Having considered the applicant’s evidence, the Board found that he was not a witness of truth [45]. The Board observed that the applicant was vague and unpersuasive on the evidence in relation to why he changed his religion [46]. It also noticed that the applicant demonstrated little knowledge about the difference between Shia and Sunni sects [47]. It cast doubt as to whether the applicant in fact practiced Shia faith [48]. Meanwhile, the Board found that the applicant provided inconsistent accounts [49]. As a result, the Board was not persuaded that the applicant was assaulted because of his conversion or that his house was burnt [50]-[57]. The references refer to the Board’s Decision.
12. The applicant did not request an oral hearing for his application. Pursuant to Order 53, rule 3(3) of the RHC[3]. His application was dealt with on paper. There is no valid reason to challenge the Board’s Decision. Nor has he raised any valid reason to show that this Court is in error.
13. There is therefore no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.
14. I refuse to extend time for him to file the notice of appeal. Accordingly, the application is dismissed.
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(K. W. Lung)
Deputy High Court Judge
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The applicant was unrepresented.
[1] Delay in applying for relief (O. 53, r. 4)
(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
[2] 11. Jurisdiction of the Registrar and masters (O. 32, r. 11)
(1) The Registrar and any master shall have power to transact all such business and exercise all such authority and jurisdiction as under any Ordinance or by these rules may be transacted and exercised by a judge in chambers except in respect of the following matters and proceedings, that is to say…”
11A. Interlocutory applications (O. 32, r. 11A)
A master may—
(a) determine an interlocutory application without an oral hearing; or
(b) adjourn the application to be heard before him or another master or a judge in chambers.
[3] 3.Grant of leave to apply for judicial review (O. 53, r. 3)
(3) The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant. (L.N. 152 of 2008)
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