Zulfiqar Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 420/2019

[2023] HKCFI 646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 420 OF 2019

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BETWEEN

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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 by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director 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 Order dated 16 January 2023 (“the Court’s decision”), the Court dismissed his application for the reason that there is no reasonable prospect of success in his proposed judicial review.

4.The applicant filed a summons on 17 February 2023 applying for extension of time to appeal against the Court’s decision. In his affirmation in support of his application, he said he did not submit any valid proof to the Board as he was unable to bring the proofs with him when he came to Hong Kong. Now he is able to provide proofs and he asks for extension of time for him to file his notice of appeal.

DISCUSSION

5.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, 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 his appeal is 30 January 2023. The applicant is late for 18 days. In the Summons he said he was late because he did not see the letter in the letter box. I shall, nevertheless, consider the merits of his 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’s claim is that, if refouled, he would be harmed or killed by his girlfriend’s family.

9.The Director of Immigration refused his application for the reason that his claim was groundless. He appealed to the Board.

10.Having considered the evidence, the Board concluded that the applicant’s evidence could be accepted. However, the Board found that given the facts of his case, he did not have real risk of being harmed or to be killed if he returned to his country.

11.The reasons given in his affirmation in support of this application are not acceptable for the reasons that he did not raise them before the Board, nor did he raise them in his application for leave to apply for judicial review of the Board’s Decision. He has given no reason for not raising them on the previous occasions. Furthermore, the reasons given by the Board dismissing his appeal are not because of lack of evidence to prove his case.

12.The applicant has raised no valid reason to show that he has any realistic prospect of success in his intended appeal.

13.In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.

The applicant was unrepresented.