RE ATIQ AHMAD

HCAL 2750/2018

[2021] HKCFI 2930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2750 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 Decisions, 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 Decisions.

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.  The applicant requested a hearing. But he was absent at the hearing without prior notice to the Court. The Court ordered that he had forefeited his right of attendance in court and proceeded to deal with his application on the papers.

4.  By Order dated 12 July 2021 (the “Court’s decision”), the Court refused to grant him 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.

5.  The applicant filed a summons on 16 September 2021 for appeal against the Court’s decision out of time.

6.  In his affirmation in support of his application, he has set out the following reasons for his application:

(1) he was detained in custody when the Court’s decision was sent to him;

(2) he did not understand the Court’s decision as there was no translation for him;

(3) he managed to get someone to translate the Court’s decision to him, but he was out of time to appeal;

(4) he failed to understand why the Court refused to accept all the grounds and error of the Board’s Decision;

(5) the court did not exercise caution and diligence in handling his case as a self-represented litigant by not providing him with translation of the Court’s decision and without a hearing with interpreter, which is procedurally unfair to him.

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.  I shall therefore first consider the merits of the applicant’s application.

11.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decisions. The Board found that the likelihood that he would be harmed as he alleged was assessed to be small [21]; that his future risk of serious harm by the robbers was assessed to be low and would be much lower as state protection was available and internal relocation was an option opened to him [28-33]. The references are those of the Board’s Decision.

12.  Taking the applicant’s reasons for his absence at the hearing as fact without further investigation, the Court had made no mistake in making the order to deal with his application on the papers as the Court did not have any prior notice of his situation. The question therefore turns on whether the Court should set aside its decision made or allow him time to appeal against its decision on this reason.

13.  This question can only be answered positive in favour of the applicant if the applicant in this application has set out what he would have submitted to the Court orally at the hearing, which would render the Court’s decision incorrect without considering his submissions. The applicant has not set out his submissions if he appeared before the Court at the hearing.

14.  The applicant has raised 8 grounds in support of his application for leave to apply for judicial review of the Board’s Decision. The Court had set out reasons to deal with each of the grounds and rejected them in paragraph 14 of the Court’s decision.

15.  The applicant said that he could not understand the Court’s decision, which is in English. However, from his own affirmation, he is able to express himself quite well in English. In the affirmation, there is not a clause that the contents of the affirmation were explained to him before he signed it. This means he understands its contents or he is the author of it. If he can understand his affirmation, he should be able to understand the Court’s decision.

16.  The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 held:

“13. … it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].”

17.  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.

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