Arslan Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1641/2021

[2024] HKCFI 1428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1641 OF 2021

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D E C I S I O N

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The application

1.The applicant is the second applicant of a family in HCAL 1641 of 2021, an illegal immigrant by staying in Hong Kong without permission and, together with other family members, 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 29 February 2024 (“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 29 February 2024 without being returned by the Post Office.

4.The deadline for appeal is on 14 March 2024.

5.By summons filed on 8 April 2024, the applicant applied for appeal against the Court’s decision out of time. He is about 3 weeks out of time.

6.In support of his application, the applicant filed an affirmation, in which he said that he did not receive the Court’s decision within 14 days.

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 (a) Mian Javed Lartif, Soukar Ali Gondai and his men due to a political dispute and (b) his brothers-in-law Imran and Rizwan, due to a family problem.

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

12.Having considered the evidence, the Board found that the applicant was unable to establish that there will be real and genuine risk that he will be harmed or killed by his enemies if he returns to Pakistan with his family.

13.As to his allegation of not receiving the Court’s decision, the Court sent the Courts’ decision to his last known address without return from the Post Office. The applicant is deemed to have received the Court’s decision.[1]

14.There is no valid reason from the applicant to challenge the Board’s Decision.

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

The applicant appeared in person.