Re Iqbal Muhammad Azha

HCAL 2773/2018

[2021] HKCFI 2500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2773 OF 2018

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

Date of Decision: 2 September 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 27 July 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 18 August 2021 applying for extension of time to appeal against the Court’s decision.

5.In his affirmation in support of his application, he said: “I want to appeal, please extend time.”, without any explanation for his delay.

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 Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board had conducted protracted cross-examination on his evidence and it came to the conclusion at paragraph 67:

“Given these multiple problems with almost every aspect of the Appellant’s account, I do not accept that he left Pakistan for the reasons claimed. Because there are such serious problems with his credibility, and the Appellant has demonstrated, in my view, a willingness to fabricate claims and evidence, I have substantial doubts as to whether he was even an imam or a teacher in a mosque, as he claims…. I do not accept that the Appellant was assaulted or threatened by Shia Muslims in his village. I do not accept that the imam of his mosque was killed in the circumstances described…. I do not accept that the Appellant was compelled to leave Pakistan because his life was in danger there. I do not accept that he is at risk of harm on return from Shia Muslims in his home area.”

10.The applicant has not raised any issue that the Board was in error in arriving at its Decision or the court had made any mistakes in its decision.  He 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.

The applicant was unrepresented.