RE ALLAH RAKHA

HCAL 821/2018

[2020] HKCFI 1262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 821 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 rejected his application and he appealed to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  Having considered his evidence, the Board, by its Decision dated 25 April 2018 (“the Board’s Decision”), rejected his appeal and confirmed 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. By Order dated 22 August 2019 (“the Court’s decision”), Deputy Judge Lam refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

3.  The applicant intends to appeal to the Court of Appeal against the Court’s decision.  However, he is out of time under Order 53, rule 3(4), RHC.  The deadline for him to file his Notice of Appeal is 5 September 2019.  He took out a summons dated 20 September 2019 for time extension for his appeal.

4.  A hearing was fixed for him to attend court for his application on 5 December 2019 and he attended the hearing.

The applicant’s affirmation

5.  The applicant filed an affirmation in support of his application.  In his affirmation he submitted that he did not receive the court’s decision and he was unable to explain why.  He further said that the delay was not significant and that he had good grounds for his appeal, they are:

(1)     he had language difficulty throughout the process of his appeal with the Board and the court assumed that he was educated;

(2)     the hearing bundle was given to him shortly before the appeal hearing and he was not given sufficient time to prepare for it;

(3)     the Board failed to take into account that Pakistan had one of the highest corruption rates and the Board was wrong to assume that he did not take the matter to higher authorities in Pakistan;

(4)     the Board failed to adhere to the minimum standards of procedural fairness; and

(5)     the Deputy Judge failed to make sufficient enquiry before finalizing the judgment.

Discussion

6.  The applicant appeared before me.

7.  According to the Court’s decision, the applicant was absent at the hearing before Deputy Judge Lam.  The letter informing him of the hearing was returned with the remark “incomplete address”.  The Deputy Judge had directed the court clerk to contact him by phone.  He had given two telephone numbers to the court.  One was invalid and the other recorded that the number was temporarily unavailable.  It is the duty of the applicant to supply complete and valid address and telephone numbers to the court for communication. Obviously, the applicant had failed to do so.

8.  The Deputy Judge then proceeded to consider his case on the papers.

9.  Grounds (1), (2) and (3) had been dealt with by the court in the Court’s decision.  Grounds (4) and (5) are his opinions without any evidence or particulars in support of them.

10.  I asked him what was his reason that he considered that Deputy Judge Lam’s decision was wrong.  He said that he had no reason to say that he was wrong in reaching his decision.

11.  The Court of Appeal in Re Adumekwe Rowland Ejike [2019] HKCA 702 28 June 2019 held

“19. The prospect of success of the intended appeal is important; the court will not grant extension of time for a hopeless appeal to be pursued.”

12.  In the circumstances, I find that the applicant is unable to show that he has a reasonable prospect of success in his intended appeal against Deputy Judge Lam’s decision.  Accordingly, I dismiss his application.