RE ASIF MUHAMMAD

HCAL 2783/2018

[2021] HKCFI 2845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2783 OF 2018

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D E C I S I O N

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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 first Decision, rejected his claim on the Torture risk, the BOR 3 risk and the Prosecution risk and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its first Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s first Decision. The applicant did not apply to the High Court for leave to apply for judicial review of the Board’s first Decision, which has become final.

2.  The applicant then raised the claim on the BOR 2 risk, which was also rejected by the Director by his second Decision.  The applicant appealed to the Board. But he was out of time.  The Board, having considered the reasons for his delay and the merits of his case, by its second Decision, refused to extend time for him to file his notice of appeal.  In effect, the Board had dismissed his appeal.

3.  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 second Decision.

4.  By Order dated 25 May 2021 (“the Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

5.  The applicant filed a summons on 8 September 2021 for judicial review out of time.

6.  In his affirmation in support of his application, he said that he did not have money to get someone to help him to prepare his case and it is dangerous for him to return to his country.

Discussion

7.  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.

8.  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.

9.  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].”

10.  The Court had considered his application. It found that the Board had duly considered not only the reasons for his delay, but also the merits of his case by reference to the Board’s first Decision, in which the Board had set out the relevant facts in support of his application. The BOR 2 risk claim relies upon the same facts.

11.  The Court, having examined the Board’s decision, considered that he had advanced no proper grounds for his application and concluded that he had no realistic prospect of success in the proposed judicial review.

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. He is therefore unable to show that he has any reasonable prospect of success in his intended appeal.

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