Case Document

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HCAL 1732/2018

[2021] HKCFI 2099

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1732 OF 2018

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RE:

OSMAN AGAMI ABDELMAKSOUD ALI

Applicant

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

Date of Decision: 30 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 29 June 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 two summons dated 14 July 2020 and 8 October 2020 applying for extension of time to appeal against the Court’s decision. The file was misplaced and the application was therefore unable to be dealt with within the usual time.

5.In his affirmation in support of his application, he said he was sick and that he did not receive the Court’s Order within 14 days and he should be given a reasonable opportunity to present his case.

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.

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.By the Board’s Decisions respectively dated 3 March 2017 and 20 July 2017, the Board rejected his appeal and confirmed the Director’s Decisions.

10.In its Decision dated 3 March 2017, the Board considered the applicant’s evidence and made findings below, the references being those in the Board’s Decision.

(1) There was no medical evidence to support the applicant’s allegation of psychological damage and he had not sought psychiatric treatment [11].

(2) The alleged assaults did not constitute “torture” within the context of the statutory provisions [12 & 13].

(3) Internal relocation was an option open to him [16 – 20].

(4) There was no evidence to show that he suffered severe ill-treatment or that there was a well-found fear that he would be subjected to such harm [25].

(5) There was no evidence that he had suffered injury or serious harm or that he would face future risk of such sufferings [30].

11.By another Decision dated 20 July 2017, the Board assessed his appeal against the Director’s Further Decision on BOR 2 risk without a hearing. It had taken into consideration those facts found in its Decision dated 3 March 2017 and concluded that the applicant had failed to establish his case under BOR 2 risk.

12.The applicant is unable to show that he has any reasonable prospect of success in his intended appeal.

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