|
HCAL 1195/2018
[2022] HKCFI 1968
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1195 OF 2018
_____________
| RE: |
Salman Shah |
Applicant |
_____________
Before: Deputy High Court Judge K.W. Lung in Chambers
Date of Decision: 14 July 2022
_____________
D E C I S I O N
_____________
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 10 November 2021 (“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.
4. The applicant filed a summons on 9 June 2022 together with his affirmation in support of his application for extension of time to file the notice of appeal. The delay is very serious. In his affirmation, he said that he did not receive the Court’s decision and he is not conversant with the judicial system in Hong Kong.
Discussion
5. Pursuant to Order 32, rule 11 and 11A of the RHC[1], having considered the applicant’s reasons, I decide to determine this application without an oral hearing.
6. 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.
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 three Sunni Muslims.
9. The Director refused his claim for the reason that his claim was not substantiated. He appealed to the Board.
10. By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal. The Board identified several aspects that damaged the applicant’s credibility [31]. It found that the applicant’s evidence contained inconsistences and discrepancies, as well as hearsay and speculations [33]-[35]. While the Board accepted that he had foot injury which might be caused in the fight, it refused to accept the alleged death threats, shooting and killing incidents [39]. Further, the Board found that the dispute was private, that there was no state involvement and that he could stay in Karachi unharmed for three months. Thus, taking into account the frequency, intensity and mode of past ill-treatments and extent of injuries, the applicant failed to establish a claim on Torture risk [42]-[48]. For the same reasons, the Board also rejected his claim on other grounds [49]-[58]. In any event, internal relocation was available to the applicant [61]. The references refer to the Board’s Decision.
11. The Court’s decision was sent to the applicant’s last known address. Pursuant to Order 65, rules 5 (2)(b) and 7(2) of the RHC, it is deemed to be served on the next following day, not being a specified day such as Saturday or a general holiday.[2]
12. There is no good reason from the application for the delay, which is very serious. Nor has the applicant raised any valid reason to show that the Board or 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.
| |
(K. W. Lung) |
| |
Deputy High Court Judge |
The applicant was unrepresented.
[1] 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.
[2] Ordinary service: how effected (O. 65, r. 5)
(2) For the purposes of this rule, and of section 8 of the Interpretation and General Clauses Ordinance (Cap. 1), in its application to this rule, the proper address of any person on whom a document is to be served in accordance with this rule shall be the address for service of that person, but if at the time when service is effected that person has no address for service his proper address for the purposes aforesaid shall be-
(b) in the case of an individual, his usual or last known address,
Effect of service at certain time (O. 65, r. 7)
(2) For computing a period of time after service of the document, the document is deemed to be served on the next following day, not being a specified day.
(3) In this rule—
specified day (指明日子) means—
(a) a Saturday;
(b) a general holiday;
(c) a gale warning day as defined by section 71(2) of the Interpretation and General Clauses Ordinance (Cap. 1); or
(d) a black rainstorm warning day as defined by that section.
|