Re Ejaz Adnan

HCAL 1286/2018

[2021] HKCFI 1222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1286 OF 2018

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

Date of Decision: 12 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 24 October 2014 (“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 20 June 2018 (“the Board’s First Decision”) rejected his appeal and affirmed the Director’s Decision. The Director’s Decision only dealt with his claim on Torture risk, BOR 3 risk and Persecution risk, leaving the BOR 2 risk unattended. By Notice of Further Decision dated 17 January 2017 (“the Director’s Further Decision”), the Director dealt with the BOR 2 risk and rejected his claim on this issue too. The applicant filed his Notice of Appeal against the Director’s Further Decision. But he was out of time. By the Board’s Second Decision 20 June 2018 (“the Board’s Second Decision”), the Board refused to extend time for him to file his Notice of Appeal.

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 Second Decision. The Court had taken into consideration both the Board’s First Decision and the Board’s Second Decision. By Order dated 16 March 2021 (“the Court’s decision”), the Court refused to grant him leave to apply for judicial review of the Board’s Second 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 7 April 2021 for extension of time for his appeal.

4.In his affirmation in support of his application, the applicant said that he did not receive the Court’s decision.

Discussion

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

6.The Court’s Form CALL-1 was sent to the applicant’s last known address. Pursuant to Order 65, rule 5 (2A) of the RHC, it is deemed to have served on him two days after the date of the letter in the ordinary course of the post, as it was not returned unserved.

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 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 Second Decision.

9.The Board had considered the Director’s Decision on the basic facts of the applicant’s claim. The Board rejected the applicant’s facts in support of his claim. In other words, the applicant has no factual basis in support of his claim. The applicant’s appeal against the Director’s Further Decision is based upon the facts of the Director’s Decision. The applicant therefore has no factual basis in support of his claim on the BOR 2 risk and the Board refused to extend time for the applicant to file his Notice of Appeal against the Director’s Second Decision.

10.The Court had considered the grounds for his application for leave to apply for judicial review and dealt with them in its decision. The applicant has no other evidence in support of his application.

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

12.He has no valid reason in support of his application.

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.