RE SHAH MOHAMMED KAMALUDDIN

HCAL 1471/2018

[2022] HKCFI 327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1471 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 Decisions (the “Board’s Decisions”), 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.  By Form CALL-1 dated 8 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:

“… as a layman and as an asylum seeker, … please give me extension of time to appeal….”

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 19 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 Firhad Hakim and/or his people.

10.  The Director found that the level of risk of him being harmed or killed by Firhad and his people upon refoulement was assessed to be low [12]-[14]; that state protection was available to him [15] and that internal relocation was an option open to him [16]-[21].  In a decision dated 24 May 2017 (“the Director’s BOR2 Decision”), the Director also dismissed his claim on BOR2 risk.  He appealed to the Board.

11.  By the Board’s Decision, the Board affirmed the Director’s Decisions and dismissed his appeal.  The Board found that there was no evidence of state involvement as the applicant’s dispute with Firhad was private.  The applicant also encountered no problems while he lived in Bardhwan which was only 70 kilometers from his home.  As a result, his claim on Persecution risk failed.  For the same reasons, his claims on BOR 3 and Torture risk also failed [48].  In any event, the Board found that internal relocation to Delhi or Bardhwan where he had lived worry free was available to the applicant [49]-[53].  Thus, the Board dismissed his appeal against the Director’s Decision. The Board also rejected his appeal against the Board’s BOR2 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.