Re Shehzad Saeed

HCAL 987/2021

[2021] HKCFI 3524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 987 OF 2021

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Before: Deputy High Court Judge K W Lung in Chambers

Date of Decision:  7 December 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 Form CALL-1 dated 5 October 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review.

4.The applicant filed a summons on 20 October 2021 for appeal against the Order out of time.

5.In his affirmation in support of his application, he said that he was unrepresented and has no means to instruct a private lawyer.

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.I shall therefore first consider the merits of his intended appeal.

10.The Board rejected his appeal and affirmed the Director’s Decision. The Board further found that the applicant’s evidence was unreliable for the reasons that his evidence had major inconsistencies and his oral evidence contained material changes to his claim. He was unable to explain away those discrepancies and he had exaggerated or embellished his claims. See paragraph 18 of the Board’s Decision.

11.The applicant has not been able to set out any valid ground to challenge the Board’s decisions. Nor can he point out any error on the part of this Court in the assessment of his application.

12.There is no realistic prospect of success in his intended appeal.  I therefore dismiss his application.

The applicant was unrepresented