Case Document

100%Judiciary

HCAL 2635/2018

[2021] HKCFI 3179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2635 OF 2018

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RE:

HUSSAIN SHABBIR

Applicant

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

Date of Decision: 9 November 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 28 April 2021 (the “Court’s decision”), the Court refused to grant him leave to apply for leave to apply for judicial review of the Board’s Decision and dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.The applicant filed a summons on 15 October 2021 for appeal against the Court’s decision out of time.

5.In his affirmation in support of his application, he said that he did not get the judgment. According to the Court’s record, Form CALL-1 was sent to him by letter dated 28 April 2021 at his last known address.

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 for the reasons as set out below.

(1) The applicant has given inconsistent evidence in the Non-Refoulement Claim Form and before the Board. [45]

(2) The Board does not accept the applicant’s evidence that there was a land dispute between his family and his uncle; that his uncle had threatened him and his family in relation to land; that his uncle had arranged people to shoot at his house or threatened him whilst he was in Pakistan; that he left Pakistan to avoid harm from his uncle and he fears returning to Pakistan for this reason. [63]

(3) The Board does not accept that the incident of him being assault in 2015 was related to his uncle and that his uncle or PML(N) is still interested in him. [72]

(4) The Board considers that the applicant will not be at risk of any harm if he returns to Pakistan. [76]

10.His ground for this application is not valid and his intended appeal has no merit.

11.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

12.The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error. There is no realistic prospect of success in his intended appeal against the Court’s decision.

13.In the circumstances, I refuse to extend time for his appeal against the Court’s decision. Accordingly, I dismiss his application.