MUHAMMAD JAMSHIED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1452/2019

[2023] HKCFI 2222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1452 OF 2019

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BETWEEN

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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 26 July 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 9 August 2023 for extension of time to file his notice of appeal. In his affirmation filed in support of his application, he has raised the grounds below.

(1) Unfairness in reaching the Board’s Decision: the applicant had not been given the chance to make his case to the Director.

(2) The Board had failed to apply high standards of fairness to his case.

(3) Error in law: [the applicant stating the legal requirements in relation to torture, BOR 2 risk and BOR 3 risk], the Director and the Board had not addressed the issue whether there is risk to his life if he is refouled to Pakistan and the applicant has not stated his case to the Director, the Board or to the Court. It is against the applicant’s human rights to send him back to Pakistan.

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 on paper 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.

7.  The deadline for his appeal is 10 August 2022. The applicant is late for almost one year, which is serious. In his affirmation in support of his application, the applicant has not given any explanation for his delay, which will render his application to be dismissed. However, I shall consider the merits of his 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’s claim was based upon his allegation that if refouled, he would be harmed or killed by his enemy Imamia Student Organization (“ISO”) from the Shia sect. The Director rejected his claim for not being substantiated. He appealed to the Board.

10.  Having considered the evidence, the Board found that according to his evidence, he no longer feared a risk of harm from his enemies; that there was no evidence that police protection would not be available to him; and that internal relocation was a viable option to him.

11.  Those grounds in paragraph 4 do not assist his application. Ground (1) fails because it is his own opinion without any evidence in support and he had been given the chance to present his case to the Director and to the Board. Grounds (2) and (3) are only his bare allegations without any evidence in support.

12.  The applicant has not been able to raise any valid reasons to challenge the Board’s Decision. There is not any realistic prospect of success in his intended appeal.

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