Re Ihsan Ul Haq

HCAL 1563/2018

[2021] HKCFI 2123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1563 OF 2018

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

Date of Decision: 9 August 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 Decision, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”).  Having considered his evidence, the Board, by its Decision (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.

3.By Order dated 15 January 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 12 March 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 appealed to the court that the case should be reviewed as it concerned human life.

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 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.The Board considered the applicant’s evidence and came to a conclusion that the applicant was not a reliable witness and it rejected the facts as alleged by him in support of his claim.  It further found that there was not a real risk that he would face any of the proscribed forms of harm if he returned to Pakistan [71-76]. Below are its reasons for its conclusion, the references being those in the Board’s Decision.

(1) There were significant inconsistencies between his evidence given to the Director and before the Board in relation to his dispute with his enemies [46].

(2) There were also inconsistences and omissions in his evidence on the dispute between his family and his enemies [48].

(3) The evidence in relation to his mother-in-law’s death was inconsistent [51].

(4) The evidence on the 2008 attack was vague and undetailed [54].

(5) He tried to explain such discrepancies by saying that he was mentally unstable.  But he did not have any medical evidence to prove that [57].

(6) His evidence on the alleged police action against him and his brothers was confusing and unclear [62].

10.The applicant 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.

The applicant was unrepresented.