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

HCAL 695/2019

[2024] HKCFI 302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 695 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 28 February 2023 (“the Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  By summons filed on 1 November 2023, the applicant applied for appeal the Court’s decision out of time.

5.  In his affirmation in support of his application, the applicant said,

“… I failed [to] appeal on time as I did not get my letter.”

6.  According to the record, the Court’s decision was sent to the applicant’s last known address on 28 February 2023.

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 on paper 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 15 March 2023. The applicant is late for about 8 months. I will 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’s claim was based upon his allegation that if refouled, he would be harmed or killed by the Communist Party of India (Marxist) (“CPM”) because of his involvement in the conflict happened in October 2006 between members of CPM and members of the Indian National Congress (“INC”).

12.  The Director rejected his claim for not being substantiated. He appealed to the Board. He requested the Board to determine his appeal on the papers without a hearing. The Board acceded to his request.

13.  Having considered the evidence, the Board found that his non-refoulement claim was not substantiated.

14.  The applicant has not raised any valid reason to challenge the Board’s Decision. He therefore fails to show that there is a reasonable prospect of success in his intended appeal.

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