RE MOHAMMAD NASIM AKHTAR

HCAL 2725/2018

[2021] HKCFI 2570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  2725 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 3 June 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons dated 25 August 2021 for judicial review out of time.

5.  In his affirmation in support of his application, he said that he did not receive the Court’s decision; that the Court’s decision was unfair and that he was not allowed to clarify his situation.

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 affirmed the Director’s Decision.  The Board, having considered the applicant’s evidence, accepted his alleged facts as the basis of his claim.  [38-47] However, the Board found that state protection would be available to the applicant and that internal relocation would be an option open to him, therefore he was unable to show that he had a well-founded fear of persecution if he returned to India [61-69]; and that there was no evidence that his case should be covered under BOR 2 risk [70-71].

10.  The Court, having examined the Board’s decision, considered that he had advanced no proper grounds for his application and concluded that he had no realistic prospect of success in the proposed judicial review.

11.  The applicant has not raised any valid ground to say either that the Board was in error or that Court was in error.  He is therefore unable to show that he has any reasonable prospect of success in his intended appeal.

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