RE LITON MD

HCAL 2516/2018

[2022] HKCFI 3582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2516 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 by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director 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 20 September 2022 (“the Court’s decision”), the Court 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 14 November 2022 applying for extension of time to appeal against the Court’s decision. In his affirmation in support of his application he asked for extension of time to appeal.  He said that he did not receive the letter from the Court.  From the Court’s record, Form CALL-1 was sent to his last known address on 20 September 2022.

Discussion

5.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

6.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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. The deadline for his appeal is 5 October 2022. The applicant is late for about one month. I shall consider the merits of his case.

7.  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].”

8.  The applicant claimed that, if refouled, he would be harmed or killed by his business partner, Md Shamim, and three creditors, Md Aslam, Shopon, and Motin Master.

9.  The Director refused his application because his claim was unsubstantiated. He appealed to the Board.

10.  The Board considered the applicant’s evidence given before the Director and during the hearing [24]-[55].  It concluded that the applicant’s claim was entirely unreliable.  In particular, his evidence was inherently inconsistent [57].  He contradicted himself about the funds required for his garment business and about the injuries he sustained during the detention.  He also provided different accounts as to the threats from the creditors, as well as whether his mother was assaulted by Motin.  He also omitted Motin’s influential background in his non-refoulement claim form. Considering these inconsistencies as a whole, the Board cast doubt on the applicant’s credibility. The references refer to the Board’s Decision.

11.  The applicant has raised no valid reason to show that he has a realistic prospect of success in his intended appeal.

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