RE NAZAKAT

HCAL 932/2019

[2022] HKCFI 3129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 932 OF 2019

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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 for staying in Hong Kong 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, 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 24 June 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 against the Board’s Decision.

4.  The applicant filed a summons on 28 September 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he does not agree with the Court’s decision.

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.  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. The deadline for appeal is on 8 July 2022. The delay is 2 months and 20 days. I shall consider the merits of the case.

7.  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].”

8.  The applicant claimed that, if refouled, he would be harmed or killed by his boyfriend Jawad’s family and relatives because of their homosexual relationship. He also feared that he would be harmed or killed by other Muslims.

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

10.  The Board accepted that the applicant was homosexual. On his own evidence, prior to the exposure of his relationship with Jawad, he was able to live a normal live undisturbed as he concealed his sexuality [64]. The Board considered the country of origin information on the aspect of homosexuality [65]-[66]; [77]-[80]. It concluded that state protection would not be available to the applicant [81]. In this circumstance, the Board proceeded to consider whether internal relocation was available to the applicant. It found that he had lived discreetly in Pakistan to hide his sexually from his family and friends to avoid their distress and embarrassment. On the evidence, the Board was satisfied that the applicant had previously adapted his lifestyle to cope with social pressure of his family, community and religion, and not because he feared persecution or harm due to his sexual orientation. Therefore, the Board found that, if the applicant relocated to a large area far from his locality, he was able to conceal his sexuality as he had previously done before. His previous relocations to Lahore and Karachi further supported this conclusion [82]-[88]. In addition, the Board noted that the applicant was never harmed by the authorities or that he had never lived openly as a gay man. As a result, in light of the aforesaid findings, the Board found that internal relocation was a viable option for the applicant and as such, rejected the applicant’s claim and dismissed his appeal. The references refer to the Board’s Decision.

11.  There is no valid reason from the applicant to show that there is any realistic prospect of success in his intended appeal.

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