RE ASIF MAHMOOD

HCAL 816/2021

[2022] HKCFI 935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 816 OF 2021

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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 20 September 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 Court received a summons from Applicant on 21 February 2022 for appeal against the Court’s decision out of time, the delay being 4 months and 17 days.

5.  In his affirmation in support of his application, he said that he did not receive the Court’s decision within time. However, according to the court’s record, the Court’s decision was re-sent to his address of the detention centre.

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 more than 4 months 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 his father-in-law, brother-in-law or police as a false accusation was filed against him of either killing or kidnapping his own wife and child.

10.  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed by his in-laws and the police upon his return to Pakistan [14]; that the problem was between himself and his in-laws and did not involve the government of Pakistan [21.1]; that reasonable state protection was available to him [23] and that internal relocation was an option open to him [24]. He appealed to the Board.

11.  He filed his notice of appeal 2 years after the deadline. The Board then considered the Director’s Decision and found that he did not have a strong case against the Director, whose decision had no patent error.

12.  By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal.

13.  The applicant is unable 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.

14.  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.