RE SHAHZAD KHURRAM

HCAL 2632/2018

[2021] HKCFI 3131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2632 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 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 Order dated 29 April 2021 (the “Court’s decision”), the Court refused to grant him leave to apply for leave to apply for judicial review of the Board’s Decision and dismissed his application for the reason that there was no realistic prospect of success in his intended application. 

4.  The applicant filed a summons on 5 October 2021 for appeal against the Court’s decision out of time. 

5.  In his affirmation in support of his application, he submitted that he considers that the Court’s decision is unfair because he was not allowed to clarify his situation in his country.  He was not informed of the time limit for his appeal and he is being detained in prison without legal advice.

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 the Board rejected his appeal and affirmed the Director’s Decision for the reasons that he had given inconsistent evidence not plausible to believe; that it came to the conclusion that his assertions of being assaulted and injured by his enemies because of arguments on general election of Pakistan or because of his religion were not true; that he had no such experiences as he said and that there is no real or substantial risk of harm of being killed if he returns to Pakistan.  See paragraphs 38-58 of the Board’s Decision.

10.  His grounds for this application are not valid as his intended appeal has no merit.

11.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

12.  The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error.  There is no realistic prospect of success in his intended appeal against the Court’s decision. 

13.  In the circumstances, I refuse to extend time for his appeal against the Court’s decision.  Accordingly, I dismiss his application.