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

HCAL 830/2019

[2025] HKCFI 3827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 830 OF 2019

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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 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 15 June 2023 (“the Judgment”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.The Judgment was sent to the applicant on 15 June 2023 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 June 2023[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 1 year and 10 months.

7.In his affirmation support of his application, the applicant stated the reasons below:

(1)  He did not received the Judgment;

(2)  he invited the Court to show document that the Judgment had been sent to him;

(3)  there is no reason that he should delay submitting an appeal;

(4)  he did not understand the Judgment and requested assistance from an interpreter;

(5)  the court was unfair to him as he will be in danger if he returns to his country; and

(6)  he did not have legal assistance before the court.

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 people in his village who belonged to a tribe/ethnic group called Pathan. The dispute between them was a land dispute.

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 unreliable; that the Pathan people did not have an intention to kill him because the owner of the land was his father, not him; that state protection was available and internal relocation was viable if he returned to his country.

14.Those reasons under paragraph 7 are not valid for his delay. The delay is substantial. He has not given any reason for not taking action to enquire the result of his own application to the Court for leave to apply for judicial review of the Board’s Decision. He had raised the issue of lack of interpretation assistance in his application for leave to apply for judicial review of the Board’s Decision and the Court had dealt with this issue in the Judgment. He is not entitled to free legal assistance at all times throughout the proceedings. The Court can rely upon its own record in the court’s file. The others are simply his own personal views without any evidence in support.

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.

The applicant was unrepresented.