Re Khadim Umair

HCAL 1257/2018

[2021] HKCFI 1150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1257 OF 2018 

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

Date of Decision: 5 May 2021

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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”). By Notice of Decision dated 23 February 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 22 June 2018 (“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. By Order dated 1 March 2021 (“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 17 March 2021 for extension of time for his appeal.

4.He set out his ground in support of this application by exhibiting the Court’s decision and asked for an extension of time for appeal.

Discussion

5.Pursuant to Order 32, rules 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

6.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]

7.The Court had in its decision, set out the reasons why it refused to grant leave to the applicant to apply for judicial review of the Board’s Decision.

8.The Board found that the applicant was not a truthful witness. It simply rejected his evidence on the facts of his case. In other words, the applicant has no factual basis in support of his application. The Board further found that state protection would be available to him and internal relocation was an option open to him.

9.The Court had considered the grounds for his application for leave to apply for judicial review and dealt with them in its decision.

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

11.His ground for this application is not valid.

12.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.