RE JAWAD MUHAMMAD

HCAL 1944/2018

[2022] HKCFI 271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1944 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 Decision, 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 Form CALL-1 dated 15 December 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review.

4.  The applicant filed a summons on 10 January 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said:

“… I want to appeal. But I did not get any letter from the High Court.”

Discussion

6.  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.

7.  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. The delay of 12 days is significant. Nevertheless, I shall consider the merits of the case.

8.  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].”

9.  The applicant claimed that if refouled, he would be harmed or killed by members of the Pakistan Muslim League (N) (“PML(N)”) and that he would be arrested by the police in Pakistan for murder.

10.  The Director found that the level of risk of him being harmed or killed by members of PML(N) upon refoulement was assessed to be low [11]-[14]; that, since he was able to travel freely, his assertion that he was wanted by the police was not accepted [15]; that state protection was available to him [16]-[21] and that internal relocation was an option open to him [22]. See the Director’s Decision. He appealed to the Board.

11.  By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal. The Board evaluated the applicant’s evidence against his oral testimony, and accepted that he had encountered four incidents with the PML(N) members and sustained injuries [17]. The Board considered the Exclusion Policy in the Refugee’s Convention which excluded from refugee status for a person with respect to whom there were serious reasons for considering he had committed a serious non-political crime outside country of refugee prior to the admission to that country as a refugee [19]-[21]. In the present case, the applicant admitted that he killed three people, including a security guard, in revenge for his brother’s death. The Board found that this fell within the Exclusion Policy and that the applicant should be excluded from protection [22]-[25]. Further, the Board found that, even on the applicant’s own evidence, he only suffered bruises and bleedings that were not serious despite the attackers were armed [30]. For the above reasons, the Board rejected the applicant’s claim on all applicable grounds [26]-[45]. See the Board’s Decision.

12.  The applicant is unable to state any valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of this Court in the assessment of his application.

13.  There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for him to appeal and dismiss his application.