Sesay Alpha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2485/2019

[2025] HKCFI 3626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2485 OF 2019

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DECISION

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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 Judgment dated 15 April 2025 (“the Judgment”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application.

4.The Judgment was sent to the applicant on 15 April 2025 at his last known address without being returned from the Post Office. He is deemed to receive the Judgment^[1].

5.The time for filing the notice of appeal expired on 29 April 2025[2].

6.By summons filed on 27 May 2025, the applicant applied for appeal against the Court’s decision out of time. He is late for more than 3 weeks.

7.In his affirmation support of his application, the applicant said that he did not receive the Judgment within the reasonable period.

Discussion

8.Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[3].

9.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.

10.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].”

11.The applicant’s claim was based on his fear of being harmed or killed by the Gbangbani secret society.

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

13.He was late in filing his notice of appeal with the Board. He stated his reasons for being late. Having considered the circumstances including absence of merits of his case, the Board refused to extend time for him to file his notice of appeal, in effect, dismissing his appeal.

14.Those reasons under paragraph 7 are not valid for his delay in filing the notice of appeal against the Judgment. He has not raised any valid reason to challenge the Board’s Decision not to extend time for him to appeal to the Board.

15.There is no valid reason from the applicant to challenge the Board’s Decision or the Judgment.

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