WIJEMUNI ROSHAN SANJEEWA GUNARATHNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 106 of 2024

[2025] HKCFI 346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 106 OF 2024

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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 October 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 on 4 October 2024 at his last known address. He is deemed to receive the Court’s decision.

5.  The time for filing the notice of appeal expired on 18 October 2024.

6.  By summons filed on 8 January 2025, the applicant applied for appeal against the Court’s decision out of time. He is late for more than 2 months.

7.  In his affirmation support of his application, the applicant said that the Court’s decision was unfair because he was not aware of the time limit; he was not given an opportunity to clarify his case and situation in his country; and he did not receive the Court’s decision.

Discussion

8.  Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[1].

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 claimed that if refouled, he would be harmed or even killed by his creditor because he was unable to repay his loan.

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 the applicant’s claim was unfounded because his evidence was not credible. It therefore dismissed his appeal.

14.  As to his grounds in support of this application, he did not ask for a hearing. Under Order 53, rule 3(3) of the RHC, the Court should deal with his application on the papers. He is deemed to receive the Court’s decision.

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.