Re Arshad Muhammad

HCAL 181/2019

[2021] HKCFI 947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 181 OF 2019

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Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Hearing: 7 April 2021

Date of Decision: 20 April 2021

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D E C I S I O N

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1.The applicant is an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). By Notice of Decision dated 20 October 2015 and Notice of Further Decision dated 12 May 2017 (“the Director’s Decision”), the Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision dated 28 December 2018 (“the Board’s 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 Decisions.  He had appeared before the Court. By Order dated 5 August 2020 (“the Court’s decision”), the Court refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

3.The applicant intends to appeal to the Court of Appeal against the Court’s decision.  However, he is out of time under Order 53, rule 3(4) of the RHC.  He filed a summons on 21 August 2020 for extension of time for his appeal.

4.He was only two days late. Deputy High Court Judge Bruno Chan considered that it was only a short delay, which, coupled with the onset of Covid-19, justified extension of time.  The Court therefore extended time of 14 days from 16 September 2020 for him to appeal.  The extended time expired on 30 September 2020. He did not file his Notice of appeal within time.

5.By summons dated 28 October 2020, he applied for another extension of time for him to appeal.  In his Affirmation in support of his application dated 28 October 2020, he did not set out the reasons for his application.

DISCUSSION

6.A hearing is scheduled for him to explain to this Court. 

7.At the hearing, the applicant said that he was late because he had to borrow money from his friend for the filing fee of the Notice of appeal.  As to his grounds for his appeal, he said that he had shown his injuries to the adjudicator and the Board should accept his evidence.  He needs time to appeal because the system in Pakistan is still not very good and he prefers to stay in Hong Kong.

8.In Re Adumekwe Rowland Ejike [2019] §19, the Court of Appeal held that in order to determine whether time should be extended for the applicant to appeal the Court’s decision refusing leave to apply for judicial review to the Court of Appeal, the prospect of success of the intended appeal is important and the court will not grant extension of time for a hopeless appeal to be pursued and the applicant has to identify any error on the part of the Judge in refusing to grant him leave to apply for judicial review. [23]

9.The Board considered the applicant’s evidence and found that his evidence was not sensible to believe and it rejected his evidence; that his evidence did not support his claim that he would be subjected to Torture risk if he returned to Pakistan; that he failed to establish that he was subjected to any minimum level of severity within the meaning of BOR 3 risk; that he failed to establish BOR 2 risk and that he failed to show he would be subjected to Persecution risk.

10.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

11.The Court had considered the Board’s Decision and found that it was without fault.

12.His grounds for this application are not valid.

13.In the circumstances, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against the Court’s decision.  I refuse to extend time for his appeal. Accordingly, I dismiss his application.

The applicant appeared in person