Case Document

100%Judiciary

HCAL 2395/2018

[2021] HKCFI 1982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2395 OF 2018

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RE:

HUSSAIN SHAFAAT

Applicant

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

Date of Decision: 21 July 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”). The Director, by his Decisions, rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decisions (“the Board’s Decisions”), 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.

3.By Order dated 16 July 2020 (“the Court’s decision”), the Court dismissed his application for the reason that there was no reasonable prospect of success in his intended application.

4.The applicant filed a summons dated 28 August 2020 applying for extension of time to appeal against the Court’s decision. The file was misplaced and the application has not been dealt with within the usual time.

5.In his summons, he said that the Court reached its decision without his appearance.

Discussion

6.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.

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 Board considered the applicant’s evidence. It found that the applicant failed to establish that if repatriated to Pakistan, he would be exposed to the risks as claimed [44]. It came to this conclusion on the reasons below. The references are those in the Board’s Decision.

(1) The applicant refused to give evidence or answer questions [4].

(2) The applicant failed to establish that Shariff, who having obtained the land, was still interested in him [10].

(3) There was no evidence that the government was involved [11].

(4) Internal relocation was an option open to him [18].

(5) There was no evidence of BOR 3 risk [27].

(6) There was no evidence of persecution risk [32].

(7) His claims were not creditable because he had not raised any torture claim when he first arrived in Hong Kong, the Board relying upon section 37ZD(1)( c) of the Ordinance.

(8) There were no answers to the queries which the Board intended to raise [43].

9.The applicant’s grounds above do not assist his application. Unless he asked for a hearing, his application for leave to file the judicial review application is an ex parte application without hearing. He did not ask for a hearing in his application in Form 86. The applicant has not been able to say in what respect had the Board erred in its Decisions.

10.He is unable to show that he has any reasonable prospect of success in his intended appeal.

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