Re Mahmood Zafar

HCAL 2169/2018

[2022] HKCFI 3051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2169 OF 2018

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

Date of Decision:  21 October 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 28 February 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 19 September 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he does not agree with the Court’s decision. But he has not explained why he is late.

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. The deadline for appeal is on 14 March 2022. The delay is about 6 months. His application can be dismissed as he has not given any explanation for the delay. Nevertheless, I shall 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, (1) he would be harmed or killed by his relatives due to a land dispute; and (2) his relatives, who belonged to Pakistan People’s Party (“PPP”), would harm him due to his membership in Muslim Conference Party (“MCP”).

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.While the Board accepted the applicant’s evidence with regards to his inheritance of the land, it cast doubt on the threats from the relatives. The Board found that the applicant provided different versions on the forms of the attack and inconsistent accounts as to the time when the police got involved [30]-[31]. It also doubted the applicant’s construction on the land [32]. Further, it disbelieved the applicant’s claim that his relatives tried to occupy the land which increased in value after a road was constructed. The evidence showed that the road was constructed some 11 years ago, long before the applicant’s claim [33]. The Board also found that the applicant provided inconsistent account as to the circumstances surrounding the shooting incident [34]. Moreover, the documents provided by the applicant failed to support his claim [36]-[43]. Viewed in totality of his evidence, the Board found them to be inconsistent and implausible. The references refer to the Board’s Decision.

11.There is no valid reason from the applicant to show that there is any realistic 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.