RE ZAMAN ADIL

HCAL 692/2019

[2022] HKCFI 3111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 692 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 Decisions, 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 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 Decision.

3.  By Form CALL-1 dated 6 September 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 22 September 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he still has problems in his home country. He only received the Court’s decision on 20 September 2022. According to the record, the Court’s decision was sent to the applicant on 6 September 2022 without return from the Post Office.

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 20 September 2022. The delay is only 2 days. Nevertheless, 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 the Pakistani Muslim League – Noon (“PMLN”) because he refused to join them.

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.  Having considered the applicant’s evidence, the Board observed that the applicant demonstrated little knowledge about the PTI, which contradicted with his claimed involvements in the PTI [15]-[21]. It also noted that the applicant provided inconsistent accounts as to the elections [22]-[25]. The Board refused to accept the applicant’s explanations of the inconsistencies. It noted that the applicant did not mention his participations in the party rallies [26] and thus found that he was not as politically involved as he claimed [27]. Further, during the hearing, the applicant showed that he was unfamiliar with the 2013 election which he claimed to be linked to his PTI involvement and several aspects of his evidence contradicted the country of origin information [28]-[34]. As to the poster and letter submitted by the applicant in support of his involvement and the PMLN’s threats, the Board found that these did not support the applicant’s claim [35]-[41]. The Board also found that the applicant was not truthful about his disagreement with his father due to different political affiliations [43]-[44]. Meanwhile, the Board considered it doubtful that the applicant was unable to provide detailed evidence on the alleged assault [47]-[52]. As a result, the Board concluded that the applicant’s claim lacked credibility. 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.