RE AHMED KHAWAJA

HCAL 2343/2018

[2022] HKCFI 1594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2343 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 Form CALL-1 dated 2 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 3 May 2022 for appeal against the Court’s decision out of time. The deadline for his appeal is 16 March 2022.

5.  In his affirmation in support of her application, he said he did not receive the Court’s decision timely without saying when he received it.

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. The delay is significant. However, 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 Gul Panrah’s father and brother because of his involvement with the secret wedding of Gul Panrah (“GP”) and Nasir.

10.  The Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed upon refoulement [14]-[16]; that reasonable state protection was available to him [17]-[19] and that internal relocation was an option open to him [20]-[21]. The references refer to the Director’s Decision. He appealed the Director’s Decision to the Board.

11.  The Board considered the applicant’s case. It found that the applicant’s allegations against GP’s father and brother were purely speculative or based on hearsay evidence [38]-[42]. It also found that the attackers had no intention to kill the applicant [43]. Further, the Board opined that the country of origin information did not support the applicant’s claim that the police would side with GP’s father and brother [45]-[47]. Thus, the Board rejected his claim on Torture risk. In assessing the applicant’s claim on BOR3 risk, the Board also found that the alleged injuries did not attain the level of severity [50]. For these reasons, the Board rejected his claim on the remaining grounds. In any event, the Board concluded that internal relocation was available to the applicant [55]-[59]. Therefore, the Board dismissed his appeal. The references refer to the Board’s Decision.

12.  The applicant is unable to raise any valid ground to challenge the Board’s 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.