Hussain Munawar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1166/2021

[2022] HKCFI 944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1166 OF 2021

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

Date of Hearing: 28 February 2022

Date of Decision: 4 May 2022

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D E C I S I O N

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The application

1.This is an application for extension of time to apply for leave to appeal against the Court’s decision dated 13 September 2021 (“the Court’s decision”) rejecting the applicant’s application for judicial review of the Director’s Decision dated 28 July 2021 (the “Director’s Decision”), which rejected his application for a subsequent claim of HCAL 1100 of 2018 (the “previous claim”). The Court had also imposed a Restrictive Proceedings Order (“RPO”) on him, prohibiting him from making further application or continuing with any existing proceedings without leave of the Court.

2.The deadline for the applicant to appeal against the Court’s decision is 27 September 2021. The application by way of affirmation lodged on 22 November 2021 is out to time for about 2 months.

The procedural history

3.The applicant is an illegal immigrant from Pakistan. He raised non-refoulement claim with the Immigration Department on 24 June 2015 on the grounds of Torture risk under the Ordinance, the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention and subsequently on BOR 2 risk, Right to Life risk under Article 2 of the Bill of Rights Ordinance.

4.His claim was rejected by the Director by Notice of Decision dated 14 November 2016.

5.He appealed to the Torture Claim Appeal Board (the “Board”). By its Decision dated 24 May 2018, the Board rejected his appeal.

6.He applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 22 February 2019.

7.He appealed against the Court’s Order to the Court of Appeal and his appeal was dismissed by the Court of Appeal on 2 July 2019.

8.He applied by notice of motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal and his application was dismissed by the Court of Appeal on 15 August 2019.

9.His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 24 December 2020.

10.He applied to the Director for subsequent claim by letter 15 January 2021 and was rejected by the Director’s Decision.

Application for appeal of the Court’s decision out of time

11.The delay of about 2 months is significant.

12.The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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. I shall first consider the merits of the case.

13.In Re Adumekwe Rowland Ejike [2019] HKCA 702 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].”

14.By letter dated 19 January 2022 from the Court, the applicant was advised to file his affirmation or affidavit to explain his delay and in support of his application and state his grounds of appeal. The applicant has not filed any affirmation or affidavit.

15.A hearing was fixed for the applicant to clarify his positions before the Court on 28 February 2022. However, the applicant was absent without prior notice to the Court. The Court decided to deal with his application on paper.

16.There are no valid reasons for his delay or for his intended appeal against the Court’s decision. There is nothing to change the fact that he relies upon the facts in support of his previous claim for his subsequent claim, which is an abuse of the court’s proceedings.

17.In the circumstances, I find that there is no realistic prospect in the applicant’s intended appeal against the Court’s order. Accordingly, I dismiss the applicant’s application.

The applicant appeared in person, absent.