RE BUTT KAMRAN ALIAS IMRAN ARSHAD

HCAL 2375/2018

[2022] HKCFI 1599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2375 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 Decisions, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). Having considered his evidence, the Board, by its Decisions (the “Board’s Decisions”), rejected his appeal and affirmed the Director’s Decisions.

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 Decisions.

3.  By Form CALL-1 dated 21 March 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.

4.  The applicant filed a summons on 5 May 2022 for appeal against the Court’s decision out of time. The Registry of the High Court was closed between 7 March 2022 and 11 April 2022 because of COVID 19 virus, such period should not be counted for the time for appeal. The deadline should therefore be 26 April 2022 (14 days from 12 April 2022).

5.  In his affirmation in support of his application, he said the delay was due to the fact that he did not receive the Court’s decision within reasonable period. According to the court’s record, the Court’s decision was sent to his last known address on 21 March 2022.

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. 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 members of Pakistan Muslim Leagues N Party (“PMLN”), especially, Rafique Jut (“RJ”) and Safdar Awan (“SA”), because of his political affiliation with the Pakistan Muslim League Q Political Party (“PMLQ”).

10.  The Director refused his claim on the grounds of Torture risk, BOR3 risk and Persecution risk. The Director found that the level of risk of him being harmed or killed upon refoulement was assessed to be low [13]-[16]; that state protection would be available to him [17]-[19] and that internal relocation was an option open to him [20]-[23]. In the Notice of Further Decision dated 28 December 2016 (“the Director’s Second Decision”), the Director also rejected his claim on BOR2 risk. The references refer to the Director’s First Decision. The applicant appealed the Director’s Second Decision to the Board.

11.  Having considered the applicant’s evidence, the Board, for the reasons set out in the Board’s Decisions, found that the applicant was not a credible witness and it rejected his evidence. The Board further found that internal relocation was a reasonable option open to him.

12.  The applicant is unable to set out any valid ground to challenge the Board’s Second Decision. Nor can he point out any error on the part of this 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.