SHARMA ASHISH KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1206/2019

[2024] HKCFI 2688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1206 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 Order dated 4 July 2024 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application.

4.  The Court’s decision was sent to the applicant at his last known address on 23 January 2024 without return from the Post Office. He is deemed to receive the Court’s decision[1].

5.  The time for filing the notice of appeal expired on 6 February 2024.

6.  By summons filed on 22 August 2024, the applicant applied for appeal against the Court’s decision out of time. He is late for more than 6 months.

7.  In support of his application, the applicant says he did not receive the court’s decision because he had moved to live at a new address. He had not informed the court of his new address. He has to bear the consequences himself.

Discussion

8.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[2].

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 said that if refouled, he would be harmed or killed by members of Rashtriya Janata Dal (“RJD”) party due to the political problem.

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

13.  Having considered the evidence, the Board found that his evidence was incredible and rejected his evidence.

14.  There is no valid reason from the applicant to challenge the Board’s Decision. It is trite law that the Court should not interfere with the finding of the facts by the Board.

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

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