RE SHAIKH SARFARAZ

HCAL 2659/2018

[2021] HKCFI 2241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  2659 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 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 Order dated 10 May 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there was no reasonable prospect of success in his intended application.

4.  The applicant filed a summons dated 21 July 2021 applying for extension of time to appeal against the Court’s decision.

5.  In his affirmation in support of his application, he said that he did not receive the Court’s decision within 14 days and he should be given a reasonable opportunity to present his case.

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.

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.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out below.

 (i) The Board did not accept the applicant’s evidence as he was unable to give particulars as to the loan he had borrowed from Asgar, the particulars Asgar had threatened him and evidence on the assailants in Hong Kong sent by Asgar to kill him.  The Board found that he failed to establish that there were substantial grounds for believing him that he would be liable to be subjected to torture if he returned to India.  For these reasons, his claim on all risks were rejected. [29-37]

 (ii) The Board also found that internal relocation was an option open to him if he returned to India. [49]

10.  The applicant is unable to show that he has any reasonable prospect of success in his intended appeal.

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