Case Document

100%Judiciary

HCAL 1240/2018

[2021] HKCFI 2219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1240 OF 2018

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RE:

SHAH SABIR HUSSAIN

Applicant

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

Date of Decision: 10 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 1 March 2021 (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 23 July 2021 applying for extension of time to appeal against the Court’s decision.

5.In his affirmation in support of his application, he said that the matters he had submitted were all true.

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.The Board rejected his appeal and affirmed the Director’s Decision for the reasons below:

(1) The applicant refused to answer questions for clarifications of some inconsistencies of his evidence despite warning from the Board that his evidence that he was attacked might not be accepted. [29-31]

(2) He also refused to offer any explanation for apparent inconsistencies internally within his claims. [34]

(3) The Board would accept that he might have been subjected to incidents of crime and possibly extortion attempts in Karachi by MQM Group. It did not accept his claims as to the continuing power of MQM in Karachi and their ability to harm him wherever he might go in Pakistan. [39]

(4) The Board was not satisfied that he had established that there are ‘substantial grounds’ which support the conclusion that he will face a real risk of ill-treatment as claimed if he returned to Pakistan. [40]

(5) There is no evidence that police were involved with MQM Group. [41]

(6) For the reasons above, the Board rejected his claim on BOR 2 risk [44], BOR 3 risk [46], Torture risk [47] and Persecution risk [48].

10.The applicant has not raised any issue that the Board was in error in arriving at its Decision and is therefore 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.