RE MEHMOOD MUHAMMAD NAEEM SHAHID

HCAL 1997/2018

[2021] HKCFI 3677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 1997 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 letter dated 7 January 2019, the applicant applied to the court for leave to withdraw his application for judicial review because he wanted to go back to Pakistan as soon as possible and it was safe for him to go home.

4.  The Court, by an order dated 9 January 2019 (the “Order”), acceded to his request and granted leave to withdraw his application.

5.  The applicant filed a summons on 10 November 2021 for appeal against the Order out of time and to re-open his application.

6.  In his affirmation in support of his application, he said that after he had returned to Pakistan, his enemies went to him.  On 6 May 2019, they came to his home and shot at him and his family members.  As a result, his wife and his daughter were killed.  He managed to escape.

Discussion

7.  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. 

8.  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.

9.  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].”

10.  I shall therefore first consider the merits of his intended appeal.

11.  The Order was made upon the applicant’s application. There is nothing that the applicant can appeal against the Order.

12.  In the circumstances, I refuse to extend time for his appeal against the Court’s decision or to re-open his case. Accordingly, I dismiss his application.

13.  On the materials submitted by the applicant, the proper course for the applicant is to apply to the Director of Immigration for a subsequent claim under section 37 ZO of the Immigration Ordinance, Cap. 115.