Re Waria Ansar Mehmood Jutt

HCAL 1447/2021

[2022] HKCFI 210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 1447 OF 2021

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

Date of Decision:  8 February 2022

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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 by overstaying 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 7 December 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 6 January 2022 for appeal against the Court’s decision out of time.

5.In his affirmation in support of his application, he said:

“I am not satisfied with the decision of the non-Refoulement Claim Petition Office to withdraw my non-refoulement claim without my proper investigation of my claim. I was unable to submit important document to support my claim, therefore the decision is unjust.”

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. The delay of 16 days is significant. Nevertheless, I shall consider the merits of the case.

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 applicant claimed that if refouled,  he would be harmed or killed by Mr. Amanullah who was associated with Pakistan Muslim League (N) (“PMLN”) for a false accusation against him that he killed Amanullah’s brother Fiaz during a wedding.  He also feared that he would be killed by the Indian Army, located close to his village.

10.The Director found that the level of risk of him being harmed or killed if he returned to Pakistan was assessed to be low [21]; that state protection would be available to him [22]-[24] and that internal relocation was an option open to him [25].  See the Director’s Decision. He appealed to the Board.

11.By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal.  The Board found that the applicant’s failure to take advantage of all the opportunities to claim non-refoulement protection was a behavior that was detrimental to his credibility [29]-[32].  The applicant accepted before the Board that there was no state or official involvement in relation to his private problem with Amanullah [37]-[38].  He also claimed that he was not a personal target of Indian Army but rather he was afraid of being randomly killed [39].  While the Board accepted that the applicant was publicly threatened by Amanullah, it refused to accept that Amanullah would harm or kill him upon his return and that, given he had left Pakistan for some 12 years, the chance of him being chased down by Amanullah was low.  Further, the Board found that Amanullah never hurt the applicant or that the applicant had ever approached the police for assistance [48].  As a result, the Board rejected his claim on the applicable grounds [50]-[77].  In any event, the Board found that internal relocation to Rawalpindi or Karachi was available to the applicant [79]-[83]. Thus, the Board dismissed his appeal. See the Board’s Decision.

12.The applicant is unable to set out any valid ground to challenge the Board’s Decision.  Nor can he point out any error on the part of this Court in the assessment of his application.

13.There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for him to appeal and dismiss his application.

The applicant was unrepresented