Badurjeman Mohamed Ajmeer v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1213/2019

[2023] HKCFI 3084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1213 OF 2019

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DECISION

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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 8 August 2023 (“the Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.By summons filed on 25 October 2023, the applicant applied for appeal the Court’s decision out of time.

5.In his affirmation in support of his application, the applicant said that there was no hearing for his application and he did not receive the Court’s decision. According to the record, the Court’s decision was sent to his last known address on 8 August 2023 without being returned from the Post Office.

Discussion

6.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing.

7.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.

8.The deadline for his appeal is 23 August 2023. The applicant is late for about 2 months. I will consider the merits of his case.

9.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].”

10.The applicant’s claim was based upon his allegation that if refouled, he will be harmed or killed by the Sri Lankan Army (“SLA”); paramilitary groups associated with the SLA and the Government of Sri Lanka; the Criminal Investigation Division, cadres and former cadres of the Liberation Tigers of Tamil Eelam; and former members of the Tamil Makkal Viduthalai Pulikai.

11.The Director rejected his claim for not being substantiated. He appealed to the Board.

12.Having considered the evidence, the Board did not accept his evidence on the main facts in support of his case. Thus, it dismissed his appeal.

13.As the applicant did not request a hearing for his application, under Order 53, Rule 3(3) of the Rules of the High Court[1], his application has to be dealt with on paper. The applicant has not been able to raise any valid reason to challenge the Board’s Decision. There is not any realistic prospect of success in his intended appeal.

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

The applicant was unrepresented.