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

HCAL 652/2019

[2023] HKCFI 528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 652 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 17 August 2022 (“the Court’s decision”)  and delivered to the applicant on 28 December 2022, the Court dismissed his application for the reason that there is no reasonable prospect of success in his proposed judicial review.

4.  The applicant filed a summons on 7 February 2023 applying for extension of time to appeal against the Court’s decision. In his affirmation in support of his application, he said he did not receive the Court’s decision because he was inside the prison. According to the record, the court re-sent the Court’s decision to CIC and then to his new residential address after ascertaining his location with the Immigration Department.

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. The deadline for his appeal is 12 January 2023. The applicant is late for about 3 weeks. I shall, nevertheless, consider the merits of his case.

7.  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].”

8.  The applicant’s claim is that, if refouled, he would be harmed or killed by members of SAD because he refused to join them.

9.  The Director of Immigration refused his application for the reason that his claim was groundless. He appealed to the Board.

10.  Having considered the evidence, the Board concluded that the applicant’s claim that he would be seriously harmed upon his return lacked credibility.  For this reasons, the Board rejected the applicant’s claim and dismissed his appeal.

11.  The applicant has raised no valid reason in his affirmation to show that he has any realistic prospect of success in his intended appeal.

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