Re Malik Kamran

HCAL 1237/2020

[2022] HKCFI 3391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1237 OF 2020

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

Date of Decision:  17 November 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 28 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 against the Board’s Decision.

4.The applicant filed a summons on 24 October 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he has no money for legal representation and his application for legal aid was refused. It is due to his lack of legal knowledge and the inconvenience in prison that caused this 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.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 12 July 2022 and the delay is about 3 months and 12 days. 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 killed by Sheikh Anwar Saced (“Sheikh”) and his fellows from the Pakistan People’s Party (“PPP”) because of his affiliation with the Pakistan Muslim League (Nawaz) (“PML(N)”).

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.However, he lodged his notice of appeal late. The Board found that the Director’s Decision was given to him on 22 May 2018. The notice of appeal was required to be filed on or before 5 June 2018. The applicant filed the notice of appeal on 18 November 2019, around 17 months after the prescribed period for lodgement ended. [8-10].

11.Having considered all the information and circumstances of the case as summarized below, the Board was not satisfied that, by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal:

(1)  his immigration history;

(2)  his criminal records in Hong Kong;

(3)  details of his non-refoulement claim: the background, threats, attacks and detention incident in Pakistan, his assaults in Pakistan and his fleeing to Hong Kong, his current situation, state protection and internal relocation alternative; and

(4)  nature of his non-refoulement claims and the fact that the PPP is no longer the ruling party.

12.The applicant has failed to raise any valid reason to show that there is any realistic prospect of success in his intended appeal.

13.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.