AFTAB AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3749/2019

[2025] HKCFI 4222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3749 OF 2019

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BETWEEN

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DECISION

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Introduction

1.  The Applicant is a Pakistani. He was arrested by the Hong Kong police for illegal remaining on 7 June 2009.

2.  The Applicant filed the non-refoulement claim on 10 June 2009. His claims were assessed on the grounds of risk of torture as defined in Part VIIC of the Immigration Ordinance (Cap. 115), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (the “HKBOR”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating ot the Status of Refugees.

3.  On 29 January 2015, the claim was rejected by the Director of Immigration (the “Director”). The Applicant’s subsequent appeal to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) was dismissed on 7 April 2017 (the “Board’s Earlier Decision”).

4.  By a letter dated 26 April 2017, the Director invited the Applicant to submit additional facts, if any, which he considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR2 Risk”), in case he had omitted any relevant facts in relation thereto before because of any misunderstanding on what “all applicable grounds” meant.

5.  The Applicant however did not submit any additional information.

6.  On 17 October 2017, the Director found that the Applicant had failed to establish any BOR2 Risk upon his return to Pakistan (the “Director’s Decision”).

7.  The Applicant then challenged the Director’s Decision before the Board. By the decision dated 21 November 2019 (the “Board’s Decision”), the Board dismissed the petition.

8.  By Form 86 filed on 16 December 2019, the Applicant applied for leave to apply for judicial review against the Board’s Decision and the Director’s Decision (the “Leave Application”). A hearing took place on 11 March 2025. The Applicant attended the hearing but indicated that he had no submissions to make. By the decision dated 24 April 2025 ([2025] HKCFI 1468) (the “Court Decision”), this Court dismissed the Leave Application on the ground that the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.

9.  By the Summons filed on 6 August 2025, the Applicant applied for an extension of time to appeal against the Court Decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of the High Court had expired (the “Application”).

10.  The Application was heard before me on 1 September 2025 (the “Hearing”). The Applicant attended the Hearing in person. When asked about the delay in filing the Application, the Applicant said he had changed his address and so he received the Court Decision late. The Applicant further indicated that he got married in Hong Kong and has no contacts in his country for the past 18 years. He does not want to go back to Pakistan.

Discussion

11.  In considering whether to extend the time to appeal, it is trite that the court will take into account: (1) the length of the delay; (2) the reason(s) for the delay; (3) the prospect of the intended appeal; and (4) the degree of prejudice to the other party if an extension of time is granted. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued. (see Re Mushtaq Imran Ali [2025] HKCA 705, at §§16-17)

12.  In the present case, there was delay of about 3 months. The Applicant’s explanation for the delay is not supported by any documentary evidence. I shall nevertheless proceed to consider the merit in the intended appeal before deciding on the Application.

13.  In the Summons and in the supporting Affirmation, the Applicant did not provide any grounds in support of the intended appeal. The Applicant had also failed to state the grounds of the intended appeal at the Hearing.

14.  I have considered the Court Decision together with the Board’s Decision and the Board’s Earlier Decision in detail. The Board’s Decision was only in relation to the BOR2 Risk. As the Applicant did not file any additional information despite the invitation of the Director following the Board’s Earlier Decision, the Board was plainly right in rejecting the appeal. This Court had reviewed the Board’s Decision and came to the correct decision that there is no realistic prospect of success in the intended challenge of the Board’s Decision. In the Court Decision, this Court had also correctly dismissed all the grounds relied upon by the Applicant in the Leave Application. I do not see any errors of law, procedural unfairness or irrationality in the Court Decision. Neither has the Applicant made any such allegations. Accordingly, I fail to see any prospect of success in the intended appeal.

Conclusion

15.  As there is no satisfactory explanation for the delay, and more importantly no prospect of success in the intended appeal, I refuse to extend the time for the appeal. The Application is hereby dismissed.