RE ATEEQ PASHA ABDUL GAFFAR

HCAL 31/2018

[2019] HKCFI 2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 31 OF 2018

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D E C I S I O N

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1.  On 24 May 2019 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board(“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Board or in its decision, and that there was no reasonable prospect of success in his intended application.

2.  The applicant now by a summons dated 12 June 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 7 June 2019, and hence he was late by five days with his intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of ImmigrationHCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicant’s case and as he is unrepresented, a delay of five days cannot, on any view, be regarded as serious or significant, for which he explained at the hearing that he just happened to have moved to a new address at that time and that his notification of his new address to the Immigration Department may have crossed with the letter from the Courtwhich may explain the slight delay, and upon showing documentary evidence that he did indeed change his address around that time, I am prepared to accept his explanation, and to proceed to consider the more crucial factor, which is the merits of his intended appeal.   

5.  He did not provide any draft or proposed ground of appeal in his summons, but attached to his supporting affirmation is a statement in which he complains that my decision was wrong in accepting the Board’s finding that his problem with Ramish was just a private monetary dispute without official involvement that state/police protection would be availableto him that his non-refoulement claim failed, of which he argues that Ramish was such an important and influential leader of the Bharatiya Janata Party (“BJP”) in India that it was wrong to find that it would be safe for him to return to India.  He also attached what appears to be a news clip dated 26 January 2017 about the suicide of a revenue inspector in Bengaluru, India and that a complaint had been made by his family to the police that Ramish and others should be held responsible for putting too much work pressure on the inspector that led to his suicide.  

6.  Even leaving aside any issue over its authenticity, of which the Board did in its decision raise the same concern about documentation from India [86], this news clip is clearly new evidence never presented before the Director or the Board that I do not see any reason why it should now be allowed to be admitted at this stage of the process, and that given its contents as referred to above, it would not in my view have assisted the applicant in any way or have advanced his case any further, as it is plain that the alleged power and influence of Ramish in India had already been taken into account or consideration by both the Director (in [17] of his decision) and the Board (in [99] of its decision) in their assessment of the claimed risk of harm from him.

7.  As explained in [16] of my decision, in the absence of any error of law or procedural unfairness in his appeal process before the Board or in the Board’s decision being clearly and properly identified by the applicant,I was unable to find any reasonably arguable basis to challenge the Board’s adverse finding on the applicant’s credibility as to his claimed fear of harm from Ramish, which the Board as primary decision maker was perfectly entitled to do based on the materials and information available and with the benefit of hearing the applicant in evidence during the oral hearing of his appeal before the Board, and of which I did not find any reason or justification to grant leave to the applicant for judicial review of its decision, nor do I find any here in the present application now before me, or any prospect of success in his intended appeal.

8.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse to grant leave for his application to appeal out of time, and dismiss his summons.