Re Hussain Imitaz

HCAL 182/2021

[2022] HKCFI 2775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 182 OF 2021

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

Date of Decision:  20 September 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 for staying in Hong Kong without permission 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 23 June 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 9 August 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he simply asks for leave to appeal out of time, stating that he was unrepresented and has no means to instruct a private lawyer.

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.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.

7.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].”

8.The applicant claimed that, if refouled, he will be harmed or killed by members of a powerful gang, Antu gang, which was led by wanted person named Antizar (nicknamed “Antu”) in Pakistan.

9.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.

10.The Board enquired the material aspects of the applicant’s evidence [20-28]. It had doubts on his stated facts that he feared the Antu gang members as he was a policeman whose duty it was to arrest the criminals. He did not see those people who had chased him on a motorbike and he was able to escape. The Board found the inconsistency in his evidence in relation to his route of leaving Pakistan. In his earlier statement, he said that he left Pakistan for Lahore from where he flew straight to China whereas before the Board, he said that he had stayed in Lahore for a period of time before he flew to China. The Board took the view that he should not have forgotten about the route he left his country. The Board doubted if his evidence was his personal experience [68]. The Board therefore rejected his evidence. The references refer to the Board’s Decision.

11.It is clear that the Board dismissed his appeal with the reasons above. In the applicant’s affirmation in support of his application for extension of time to appeal, he had not set out any reason to show that he has any reasonable prospect of success in his intended appeal.

12.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.