RE MOHOMED RAHOOF MOHOMED SAJAHAN

HCAL 2216/2018

[2022] HKCFI 1916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2216 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 by remaining without permission 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 4 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. The deadline for him to file his notice of appeal is 19 May 2022 (within 14 days after the order).

4.  The applicant filed a summons on 2 June 2022 for appeal against the Court’s decision out of time.

5.  In his Summons of his application, he said he is not satisfied with the Court’s decision, which has error.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC[1], 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 applicant has given no good explanation for his delay. However, 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 Priyantha and Sudu Mahatiya (“Sudu”), as well as the triad members in Maligawatte.

10.  By the Director’s Decision, the Director refused his claim for the reason that his claim was not substantiated. He appealed to the Board.

11.  The Board dismissed his appeal. Firstly, the applicant’s alleged risk of harm from Priyantha and Sudu was speculative [75]-[81]. Secondly, on the applicant’s own evidence, the alleged risk of harm from the gangsters no longer existed [82]-[85]. Thirdly, while the Board accepted that there were conflicts between Buddhists and Muslims, there was no evidence suggesting that the applicant was a target of the conflict. Further, the country of origin information (“COI”) showed that the government was taking steps to solve these conflicts [86]-[92]. Fourthly, the applicant’s alleged fear of being a suspect of damage to a Buddhist Shrine did not warrant any non-refoulement protection as there was no charge laid against him and, if any, he would be able to defend such charge [93]-[94]. Fifthly, COI did not support the applicant’s assertion that he would face real risk of harm as a Tamil in Sri Lanka [95]-[97]. The references refer to the Board’s Decision.

12.  The applicant is unable to raise any valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of the Court in the assessment of his application.

13.  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.