Case Document

100%Judiciary

HCAL 250/2019

[2024] HKCFI 503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 250 OF 2019

_____________

BETWEEN

	Raju Sheikh	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:

1 March 2024

_____________

D E C I S I O N

_____________

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”). In his first application on Torture risk, BOR 3 risk and Persecution risk, the Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). He was late in filing the notice of appeal The Board, having considered his explanation for being late, refused to extend time for him to file the notice of appeal. He did not appeal against this decision (“the Board’s First Decision”).

2.He had also made a second application to the Director on the ground of BOR 2 risk. Having considered his evidence, the Director, by Notice of Further Decision (“the Director’s Second Decision”). He appealed to the Board. The Board, by its second Decision (“the Board’s Second Decision”), dismissed his appeal for the reason that it rejected the applicant’s evidence on the BOR 2 risk and also for the reasons that state protection would be available to him and internal relocation was a viable option.

3.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 Second Decision.

4.By Order dated 7 March 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.

5.By summons filed on 5 December 2023, the applicant applied for appeal the Court’s decision out of time.

6.In his affirmation in support of his application, the applicant said that he did not receive the Court’s decision as he had moved without updating the court his new address.

Discussion

7.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.

8.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.

9.The Court’s decision was first sent to the applicant on 7 March 2023. The applicant subsequently informed the Court that he had moved to another address. The court’s letter was re-sent to the applicant on 22 September 2023.

10.The applicant has the obligation to update the court his address from time to time and he must bear the consequence if he fails to do so.

11.Even if the date of the letter re-sent to the applicant is taken into account, the deadline for him to file his notice of appeal is on 7 October 2023. He is therefore late for about 2 months. I shall consider the merit of his application.

12.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].”

13.The applicant’s claim is based upon his allegation that if refouled, he will be harmed or killed by his moneylender named Akbar.

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

15.Having considered the evidence, the Board, for the reasons given, did not accept the credibility of his evidence on the facts of his case. It further found that state protection will be available to him and internal relocation will be a viable option open to him. It therefore dismissed his appeal.

16.The applicant has not raised any valid reason to challenge the Board’s Second Decision. He therefore fails to show that there is a reasonable prospect of success in his intended appeal.

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