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

HCAL 947/2019

[2024] HKCFI 1301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 947 OF 2019

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BETWEEN

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DECISION

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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 refused his application. He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board dismissed his appeal.

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 20 July 2023 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application. The deadline for appeal is on 4 August 2023.

4.  By summons filed on 7 February 2024, the applicant applied for appeal against the Court’s decision out of time. His application is late for more than 6 months.

5.  In his affirmation in support of his application, the applicant said that the Court’s decision was reached unfairly as he was not given an opportunity to adequately clarify his case and present his situation in his home country. He further said that he did not receive the Court’s decision. According to the record, the Court’s decision was sent to his last known address on 20 July 2023 without being returned from the Post Office.

Discussion

6.  Relying on Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022, I decide to determine this application on paper without an oral hearing.

7.  The Court shall consider the factors as set out in AW v Director of Immigration and William Lam [2016] 2 HKC 393 at paragraph 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.

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 said that if refouled, he would be harmed or killed by Amjad Hussan due to arguments and land disputes.

10.  Having considered the evidence, the Board did not accept his evidence found that he was not a witness of truth. Further, the Board found that state protection was available and internal relocation was a viable option open to him.

11.  The applicant has raised no valid reason to challenge the Board’s Decision.

12.  The applicant fails to show that his intended appeal has any realistic prospect of success.

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