Abbas Sadaqat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2092/2024

[2025] HKCFI 2469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2092 OF 2024

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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 (“Director”). The Director rejected his application (“Director’s Decision) and he appealed to the Torture Claims Appeal Board (“Board”). Having considered his evidence, the Board, by its decision dated 13 April 2022 (“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 (“Leave Application”).

3.By an order dated 12 February 2025 (“Order”), the Court dismissed the Leave Application for the reason that there was no realistic prospect of success in his intended judicial review application.

4.The applicant by a summons filed on 17 April 2025 (“Summons”) seeks extension of time to appeal against the Order (“Time Application”), as the 14-day period for him to file his appeal under Order 53 Rule 3(4) of the RHC ended on 26 February 2025, and hence he was 50 days late with his intended appeal.

5.In his supporting affirmation filed on 17 April 2025 (“Affirmation”), the applicant explained that he was not well educated and was verifying if he would be safe to go back to his country as his intended judicial review was finalized but he got a piece of information that his life was still under threat and danger. He then decided to file the Summons.

6.The applicant attended the court hearing of 23 May 2025 for the Summons (“Court Hearing”) and explained that he had no money to pay the court fee for his intended appeal and it took time for him to get loans from his friends for the court fee.

Discussion

7.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

8.In the applicant’s case, a delay of 50 days is substantial in view of the statutory period allowed is only 14 days. I note that the address of the applicant stated in the Summons was Tai Tam Gap Correctional Institute. It is understandable that it would require more time for the applicant to get loans from his friends for the court fee when he was in custody. Taking more than 2 months (i.e. from 12 February 2025 [date of the Order] to 17 April 2015 [date of the Summons]) to arrange for the required court fee seemed to be on the high side but in the circumstances of this case, I am prepared to accept this explanation of the applicant.

9.More importantly, the applicant failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the Board’s Decision or why it may reasonably be argued that the Board’s decision was unfair or unreasonable either in the Summons or in the Affirmation, nor was he able to do so at the Court Hearing.

10.In the Summons, the applicant complained that he was discriminated in that his intended judicial review application had been finalized in a very short time. I suppose that an applicant making an application should wish his application to be dealt with as quickly as possible. The aforesaid complaint of the applicant cannot be a ground for seeking extension of time for his intended appeal nor as ground for his intended appeal.

11.The applicant claimed that his life was in danger if he were returned to Pakistan as he had a dispute with his paternal cousins (“Cousins”) in selling properties and they threatened to kill him if he were returned to Pakistan.

12.For reasons stated in the Board’s Decision, the Board found that the applicant had provided no real basis for the assertion that Cousins would kill him should he return to Pakistan and he sought to change his story to exaggerate the nature of his dispute with Cousins. The Board regarded the applicant’s vague claims about Cousins’ political connections as lacking in substance and credibility. The Board found that the applicant’s claim to fear that he would be seriously harmed or killed by Cousins was untrue because he had sought to greatly exaggerate the seriousness of any actual dispute with the Cousins. The Board was not satisfied that the applicant had established that there were substantial grounds which supported the conclusion that he would face a real risk of persecution, ill-treatment or deprivation of life if he returned to Pakistan. The Board dismissed the applicant’s appeal on such basis.

13.The applicant did not state any proposed grounds of appeal in the Affirmation. He confirmed to the Court at the Court Hearing that he was unable to specify any grounds for his intended appeal at this stage. He needed more time to seek legal assistance. I note that the Applicant had applied for legal aid on 11 February 2025 and his legal aid application had been refused on 3 March 2025.

14.The applicant did not identify in the Affirmation or at the Court Hearing any error of law, procedural unfairness or irrationality in the Board’s Decision.

15.In the absence of any error of law, procedural unfairness or irrationality in the Board’s Decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal in contending that the Court was wrong in refusing the Leave Application.

16.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].”

17.The applicant was not able to raise any valid reason to challenge the Board’s Decision in the Leave Application or in this Time Application. Thus, there is not any realistic prospect of success in his intended appeal.

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

The applicant was unrepresented and attended the hearing in person.