Re Ahmed Salauddin

HCAL 1109/2019

[2022] HKCFI 3130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1109 OF 2019

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

Date of Decision: 28 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, 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 against the Board’s Decision.

4.The applicant filed a summons on 26 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 want to return to his country.

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 21 July 2022. The delay is 2 months and 5 days. 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, he would be harmed or killed by Mumtaz or Mumtaz’s father because of a business dispute.

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

10.Having considered the applicant’s evidence, the Board was not satisfied that the applicant’s claim was truthful [85]. In particular, the Board found that the applicant gave inconsistent accounts on both Blue Print and Double Horse, as well as the dealings between them [87]-[89]; [91]-[92]. Further, it noted that the applicant had submitted no documents to prove the business relationships between Blue Print and Double Horse [90]. In addition, the Board also considered that his evidence on whether he was ever harmed by Mumtaz contained significant inconsistencies which he failed to clarify during the hearing [93]-[95]. Meanwhile, the applicant also gave contradictory evidence on the fight between Mumtaz and his brother [96]-[98]. There was also no evidence on whether the applicant had ever reported to the local police [99] and it was only a bare assertion that Mumtaz’s family was influential [100]. In light of these inconsistencies, the Board concluded that the applicant was not a witness of truth [108]. In any event, the Board considered internal relocation a viable alternative for the applicant [109]-[110]. 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.