Bougatef Walid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3796/2019

[2024] HKCFI 1333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3796 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 the evidence in the absence of the applicant who failed to attend the hearing, 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 24 August 2023 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application. The Court’s decision was sent to the applicant on 24 August 2023. The Court received the applicant’s letter dated 4 September 2023, informing the Court that he was being detained in Tai Tam prison. The Court re-sent the Court’s decision to the applicant at Tai Tam prison on 21 September 2023. The Court’s decision is deemed to have served on the applicant on 22 September 2023, a business day, pursuant to Order 65, rules 5(2) and 7(2) of the RHC^[1].

4.The deadline for appeal is on 6 October 2024.

5.By summons filed on 7 March 2024, the applicant applied for leave to appeal against the Court’s decision out of time. He is about 5 months late.

6.In support of his application, the applicant filed an affirmation, in which he said that there are errors of law and procedural unfairness or irrationality on the part of the Board and the Court. In his statement on the details, he said that he had lost contacts with his loved family members and that there are errors on the date of his entry into Hong Kong. He insists that the identity document, which relied upon to gain entry into Hong Kong is not a false document. He further said that he has lost contact with his family. He does not know if his mother and his 2 kids are still alive. He is unable to obtain his father’s death certificate as it is in his country.

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. 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 said that if refouled, he would be harmed or killed by the Nahda Party, alias, the Ennahda Party (“EP”), due to his father’s political affiliation of a rival political party, Tunisia Appeal Party (“TAP”).

11.The Director rejected his claim because it was not substantiated. He appealed to the Board.

12.However, he did not appear before the Board despite the Board had given him notice to attend and to explain his absence. The Board considered the materials before it and found that there were issues, which it could not resolve without the applicant’s oral evidence. Having considered the evidence, the Board found that his evidence on the facts of his case was incredible. The Board therefore dismissed his appeal.

13.As to the grounds raised in paragraph 6, the applicant is repeating his story in support of his claim, which had been considered by the Director and the Board. The Board did not accept his evidence because he failed to attend the Board’s hearing without any explanation. Up till now, the applicant has not explained why he did not attend the Board’s hearing.

14.The applicant fails to show that there is realistic prospect of success in his intended appeal.

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

The applicant was unrepresented.