Case Document

100%Judiciary

HCAL 1094/2019

[2022] HKCFI 2468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1094 OF 2019

_____________

RE:

ULLAH SIBGATH

Applicant

_____________

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

Date of Decision: 30 August 2022

_____________

D E C I S I O N

_____________

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 7 July 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 22 July 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he has serious risk of life on his return. His situation in Pakistan is still very bad and dangerous. His enemies are still threatening him. He does not want to die. However, he did not give his reasons for his delay.

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 Mr. Mukhtar (“Mukhtar”) who was associated with Pakistan Muslim League Nawaz (“PML(N)”) because he had a land dispute with him and also, he was associated with Pakistan Tahreek-e-Insaf (“PTI”).

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. The references refer to the Board’s Decision. He appealed to the Board.

9.Having considered the applicant’s evidence, the Board rejected his evidence that he was assaulted by the PML(N) people; that he did not obtain police assistance; that the PML(N) people were still interested in him. It further found that the purported land dispute did not have anything to do with his alleged fear; that the land dispute with Mukhtar was a personal dispute without any state involvement and that state protection was available to him. See paragraphs 36-66. Relocation was also an option open to him [71]. 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.