RE MD RUSSEL MIAH

HCAL 1097/2019

[2022] HKCFI 2459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 1097 OF 2019

_____________

_____________

D E C I S I O N

_____________

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 19 May 2022 (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.  Theapplicant filed a summons on 21 July 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he did not know that he has to appeal within 14 days.

Discussion

5.  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.

6.  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].”

7.  I shall therefore consider the merits of his case. The applicant claimed that, if refouled, he would be harmed or killed by the creditor Abdul Karim (“Abdul”) and his relatives because he refused to marry Abdul’s daughter as an alternative to his father’s default in loan repayment.

8.  By way of the Director’s Decision, the Director refused the applicant’s claim for the reason that his claim was not substantiated. The applicant appealed to the Board.

9.  The Board confirmed the Director’s Decision. It further found that there was never any conduct on the part of Abdul or his relatives carrying out the threats as alleged [40]. On this basis, all his claims were rejected. It also found that relocation was an option open to him [49-53]. The references refer to the Board’s Decision.

10.  It is clear that the Board dismissed his appeal as it did not accept the applicant’s facts in support of his claim. In the applicant’s affirmation in support of his application for extension of time to appeal, he had not set out any reasons to show that he has any reasonable prospect of success in his intended appeal.

11.  In the circumstances, I refuse to extend time for the applicant to file his notice of appeal.  Accordingly, I dismiss his application.