SUBRAMANIAM NAVARAJAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2715/2019

[2023] HKCFI 2163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2715 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”).

2.  Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), dismissed his appeal. He applied to the Court for leave to apply for judicial review of the Board’s Decision.

3.  This Court, by Form CALL-1 dated 23 August 2022 (“the Court’s decision”) refused his application.

4.  The applicant filed a summons and an affirmation on 1 August 2023 applying for extension of time for filing the notice of appeal.

5.  In his affirmation, he said that the Board’s Decision of not allowing him to re-open his claim was Wednesbury unreasonable in that it failed to attained high standards of fairness and he was deprived of the second stage of the two-tier enhanced screening of his claim. He submitted that he was detained in CIC and he might not receive the Board’s Decision on time. He maintains that he has good reason to re-open his case.

6.  On the court’s record, he appeared before the Court on 25 July 2022. He confirmed that he understood the Board’s Decision and he had nothing to say on it.

Discussion

7.  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.

8.  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.

9.  The deadline for his appeal is 7 September 2022. The applicant is late for about 11 months. The delay is serious. I shall, nevertheless, consider the merits of his application.

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 applied to the Director for non-refoulement protection. But he had twice failed to submit his non-refoulement claim (the “NCF”) form despite warnings having been given to him of the consequences. On request, the applicant gave explanation to the Director for his failure of submitting the NCF for the second occasion. He explained that it was due to a virus fever, he could not submit the NCF. However, he was unable to provide a medical certificate to support his explanation. Having considered the relevant circumstances, the Director decided not to re-open his claim.

12.  He appealed to the Board. After considering the relevant circumstances, the Board found that (i) the applicant was given a month to complete the NCF; (ii) he was provided with the legal assistance which only ceased on 20 January 2017 due to lack of instructions; (iii) he failed to provide any medical evidence in support of his claimed health issue; (iv) it was implausible that he had been suffering from the fever for almost a month; and (v) there was an inordinate delay of more than 5 months in requesting the re-open of his claim since the deadline for him to return the NCF.   

13.  In light of the aforesaid findings, the Board was of the view that the Director had complied with section 37ZG(5) of the Immigration Ordinance in refusing to re-open the applicant’s non-refoulement claim.  Thus, the applicant’s appeal was dismissed.

14.  The applicant’s reasons in paragraph 5, supra are not valid grounds to challenge the Court’s decision.

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

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