Hussain Shah Mamraiz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1223/2019

[2024] HKCFI 609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1223 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 2 November 2023 (“the Court’s decision”), the Court dismissed his application.

4.By summons filed on 7 December 2023, the applicant applied for appeal against the Court’s decision out of time.  He is late for about 3 weeks.  

5.In support of his application, the applicant filed an affirmation, in which he said that he did not received the Court’s decision.  According to the record, the Court’s decision was sent to his last known address on 2 November 2023 without being returned from the Post Office.  Pursuant to Order 65, rules 5 (2)(b)  and 7(2)  of the RHC, it is deemed to be served on the next following day, not being a specified day such as Saturday or a general holiday.[1]

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.I shall 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 is that, of refouled, he would be harmed or killed by Mir Asfar Shah and Asif Khan due to a land dispute.

11.The Director rejected his claim for the reason that it was not substantiated.  He appealed to the Board.  He attended a hearing and he had given oral evidence before the Board.

12.Having considered the applicant’s evidence, the Board found that the applicant’s claimed risk of harm was unconvincing and devoid of credibility. The Board further found that internal relocation was a viable alternative for him.

13.The applicant failed to raise any valid reason to challenge the Board’s Decision.  Therefore, he is unable to show that his intended appeal has any realistic prospect of success.

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

The applicant was unrepresented.