NAEEM MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1136/2021

[2023] HKCFI 1715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1136 OF 2021

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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.  This Court, by Form CALL-1 dated 26 October 2021 (“the Court’s decision”) refused his application.

3.  The applicant filed a summons and an affirmation on 8 June 2023, applying for extension of time for filing the notice of appeal.

4.  In his affirmation, he said that he did not receive the Court’s decision as he was detained and his letterbox was destroyed; and further his premises was burgled. According to the record, the Court’ decision was sent to the applicant’s last known address on 26 October 2021, such last known address was verified by the Director on 4 October 2021. In any event, he should have followed up the result of his leave application after he had filed his leave application from time to time either with the Immigration Department or with the court.

Discussion

5.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

6.  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.

7.  The deadline for his appeal is 10 November 2021. The applicant is late for more than one and a half years. I shall consider the merits of his case.

8.  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].”

9.  The applicant’s claim is that, if refouled, he would be harmed or killed by Tasawar, who is the cousin of his wife.

10.  The Director of Immigration refused his application for the reason that his claim was not substantiated. He appealed to the Board.

11.  The Board found that his evidence was not credible because of inconsistencies, vagueness and even contradictions. The Board further found that though state protection might not be available to him, internal relocation was an option open to him. It therefore dismissed his appeal.

12.  The applicant is unable to raise any valid reason to challenge the Board’s Decision.

13.  In the circumstances, I find that the applicant has not been able to show that there is any realistic prospect of success in his intended appeal.

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