RE BUTT WAQAR ALI

HCAL 1080/2019

[2023] HKCFI 69

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1080 OF 2019

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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 by staying in Hong Kong without permission 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 (“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 Order dated 11 October 2022 (“the Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons on 29 November 2022 applying for extension of time to appeal against the Court’s decision. In his affirmation in support of his application, he said that he does not know that the Court’s decision had been published until his friend help him to check online. He does not understand English and had to obtain assistance from his friend. The procedures for appeal is complicated. The Court’s decision does not inform him of the time for the appeal, unlike the Director’s Decision. The 14-day time limit should count from the time physical delivery of the judgment had served on him. The Deputy Judge had not made arrangement to enable him to understand the contents of the judgment.

Discussion

5.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

6.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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 deadline for his appeal is 25 October 2022. The applicant is late for 1 month and 4 days. I shall consider the merits of his 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 the supporters of Pakistan Muslim League (Nawaz) (“PMLN”) as he supported the opposition group Pakistan Muslim League (Quaid e Azam Group) (“PMLQ”).

9.  The Director refused his application because his claim was unsubstantiated. He appealed to the Board.

10.  Having considered the applicant’s evidence, the Board identified several significant inconsistencies in his claim [99]. In particular, the Board noted that the applicant was inconsistent about the number of incidents he encountered with the PMLN members; that he provided different versions as to whether he was hospitalized after the attack; that he changed his version of event as to whether the PMLN members killed the participants in the PMLQ party gathering and that he contradicted himself as to whether he escaped or was released from the kidnaps. The Board further noted that it was illogical for PMLN to target him since he was only a supporter; that the PMLN did not pursue further actions when the applicant did not stop supporting PMLQ; and that he did not possess any political knowledge [100]. On these premises, the Board cast great doubt on the applicant’s credibility. The references refer to the Board’s Decision.

11.  The applicant has raised no valid reason to show that he has a realistic prospect of success in his intended appeal.

12.  In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.