Re Adil Khawaja

HCAL 924/2019

[2022] HKCFI 2286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 924 OF 2019

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

Date of Decision: 9 August 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 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 30 May 2022 (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 18 July 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he asked for extension of time as he missed the time to appeal.

Discussion

5.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.

6.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].”

7.I shall therefore consider the merits of his case. The applicant claimed that, if refouled, he would be harmed or killed by by his cousin, Asad.

8.By way of the Director’s Decision, the Director refused the applicant’s claim for the reason that his claim was not substantiated. The applicant appealed to the Board.

9.The Board noticed that the applicant did not submit any documentary proof, such as death certificate of his father, medical certificates of his injuries and the first information report about the complaint to the police [28]. It observed that the applicant was evasive in answering the questions in relation to certain material aspects of his claim [32]. He also failed to provide cogent explanations to the inconsistencies in his evidence and a large amount of the evidence were based on hearsay information [35]-[36]. In these premises, the Board refused to accept the applicant’s evidence [39]. The references refer to the Board’s Decision.

10.It is clear that the Board dismissed his appeal as it did not accept the the applicant’s facts in support of his claim. In the applicant’s affirmation in support of his application for extension of time to appeal, he had not set out any reasons to show that he has any reasonable prospect of success in his intended appeal.

11.In the circumstances, I refuse to extend time for the applicant to file his notice of appeal. Accordingly, I dismiss his application.

The applicant was unrepresented.