Syed Faisal Hussain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 653/2024

[2026] HKCFI 4343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 653 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 (“his previous 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 dated 15 November 2018 (“the Board’s Decision”), rejected his appeal and affirmed the Director’s decisions.

2.By Form 86, he applied for judicial review of the Board’s Decision. The Court of First Instance granted leave to him to apply for judicial review of the Board’s Decision. However, he withdrew his application and the Court granted leave for him to withdraw on 8 May 2023.

3.By letter dated 10 August 2023, he applied to the Director to re-open his claim as a subsequent claim. The Director accepted his application as a subsequent claim. By decision of the Director dated 21 November 2023 (“the Director’s Order”), the Director rejected his subsequent claim. He applied to this Court for leave to apply for judicial review against the Director’s Order.

4.By Form CALL-1 dated 18 July 2024 (“the Court’s decision”), the Court dismissed his application as there is no realistic prospect of success in his intended application.

5.The Court’s decision was sent to the applicant on 18 July 2024 at his last known address without being returned from the Post Office. He is deemed to receive the Court’s decision[1].

6.The time for filing the notice of appeal expired on 1 August 2024[2].

7.By summons filed on 2 July 2026, the applicant applied for appeal against the Court’s decision out of time. He is late for over 1 year and 11 months.

8.In his affirmation in support of his application, the applicant said that he withdrew his application under a mistake and he will be in danger if he returns to his country. He did not explain why he had delayed his application for so long.

Discussion

9.Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, I decide to determine this application on paper without an oral hearing[3].

10.The Court will 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.

11.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].”

12.In his previous claim, the applicant claimed that if refouled, he will be harmed or killed by the Hindus because he is a Muslim. In his subsequent claim he relied on the same reason to support his application.

13.The Director rejected his claim because it did not comply with the requirements under section 37ZO of the Immigration Ordinance.

14.He did not dispute that he relied on the same facts of his previous claim in support of his subsequent claim. Nor did he give any explanation for his serious delay in his application.

15.There is no valid reason from the applicant to challenge the Director’s Decision or the Court’s decision.

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

The applicant was unrepresented.