RE MOHAMMAD HASIM

HCAL 1468/2018

[2022] HKCFI 136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1468 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.  He was repatriated back to India. He entered Hong Kong illegally again and surrendered to the Immigration Department. He applied for subsequent claim, which was rejected by the Director.

3.  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 Director’s Decision. 

4.  By Form CALL-1 dated 24 November 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 of the Director’s Decision rejecting his subsequent claim.

5.  The applicant filed a summons on 13 December 2021 for appeal against the Court’s decision out of time.

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

“… The Order was served on me from the Court by post on the same day according to my beliefs, but unfortunately I got it on 11 December 2021 and it was out of time to appeal … I have no knowledge about law in Hong Kong and I don’t know how to do proceding of summons. That is why I took help of my friend. I have no money to hire a solicitor or lawyer to apply the summons for extension of time to appeal…I have severe problem in my home country. If I return back to my country, I will be killed by my enemy. My enemy is still looking for me… the immigration officer and the adjudicator of the Torture Claims Appeal Board did not scrutinize my claim properly …”

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. The delay of 5 days is not significant and serious.  Nevertheless, I shall consider the merits of the case.

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.  The applicant claimed that, if refouled, he would be harmed or killed by his creditors if he returned to India because he was unable to repay his debt.

11.  The Director found that the level of risk of him being harmed or killed by his creditors was low; that the state was no involved and state protection would be available to him; and that internal relocation was an option open to him. 

12.  He appealed to the Board, but he refused to answer any questions put to him. The Board had doubts on the credibility of his evidence.  It dismissed his appeal on all risks of his claim.

13.  In his subsequent claim, the Director found that he relied upon the same facts for his previous claim and rejected his subsequent claim.

14.  The applicant has not been able to set out 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.

15.  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.