Case Document

100%Judiciary

HCAL 62/2019

[2023] HKCFI 991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 62 OF 2019

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BETWEEN

	Hussain Adnan	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

_____________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

27 April 2023

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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 2 February 2023 (“the Court’s decision”), the Court dismissed his application for the reason that there was no reasonable prospect of success in his proposed judicial review.

4.The applicant filed a summons on 27 March 2023 applying for extension of time to appeal against the Court’s decision. In his affirmation in support of his application, he said he received the Court’s decision late. According to the record, the Court’s decision was sent to his last known address on 2 February 2023 without being returned from the Post Office.

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 17 February 2023. The applicant is late for more than 5 weeks. I shall 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 cousin IIyas.

9.The Director of Immigration refused his application for the reason that his claim was not substantiated. He appealed to the Board.

10.His appeal was considered by the Board on paper as the applicant did not appear before despite due statutory notice having been given to him. The Board considered the merits of his claim and found that the alleged past ill-treatments did not amount to anything close to the type of harm that would be a threat to his life, persecution, torture or cruel or inhuman degrading treatment or punishment. It also found that the applicant was able to live in another part of Pakistan unharmed for a certain period of time. It further rejected the applicant’s claimed fear of harm from the false accusation as the evidence was inconsistent and vague.

11.The applicant has not been able to raise any valid ground to challenge the Board’s Decisions. There is not any realistic prospect of success in his intended appeal.

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