Mohammad Amjad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2506/2018

[2025] HKCFI 3593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2506 OF 2018

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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 Form CALL-1 dated 27 October 2022 (“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 27 October 2022 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 4 November 2022[2].

6.By summons filed on 12 May 2025, the applicant applied for appeal against the Court’s decision out of time. He is late for more that two and a half years.

7.In his affirmation support of his application, the applicant said that the Court’s decisions were unfair as he was not given a chance to clarify the details of his case and the situation in his country and he did not receive the Judgment because he was being detained in the Correctional Institute. The applicant has not disclosed when he was detained in the Correctional Institute.

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 claimed that if refouled, he would be harmed or killed by the brothers of Abdul Wadood and be ill-treated by the police for they suspected that he had killed Abdul.

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

13.Having considered the evidence, the Board dismissed his appeal for the reason that his evidence was untruthful.

14.Those reasons under paragraph 7 have been considered. He did not request of a hearing in Form 86. Under the law, the Court dealt with his application without a hearing. As to his allegation that he did not receive the Judgment, he had not stated when he was detained and even if he was detained before the Judgment was sent to his last known address, he should not have made the enquiry as to the outcome of his own application within reasonable time. He had not done so for two and a half years. This is unreasonable.

15.There is no valid reason from the applicant to challenge the Judgment.

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