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

HCAL 3647/2019

[2025] HKCFI 4548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3647 OF 2019

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D E C I S I O N

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1.  By summons (“the Summons”) filed on 2 June 2025, the Applicant seeks an extension of time to appeal this Court’s decision dated 15 May 2025 (“the Decision”), by which his application for leave to apply for judicial review of the decision the Torture Claims Appeal Board / Non-refoulement Petition Office dated 29 November 2019, which confirmed the decision of the Director of Immigration dated 9 August 2018 rejecting his non-refoulement claim on grounds under the USM, was dismissed.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The Applicant was therefore late in taking out the Summons by 4 days.

3.  In considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the Court will take into account: (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted (see Jagg Singh and Torture Claims Appeal Board / Non-Refoulement Claims Petition Office CAMP 64/2020 [2020] HKCA 844 at §10).

4.  First, the delay in this matter is not serious. The Applicant asserts that he did not receive the Decision. He further explains that both the Decision and the Notice of the present hearing were sent to the same address. He received the Notice, but the Decision was inadvertently misplaced. According to his account, his landlady had removed his mail when the letterbox became full, which led to the misplacement of the Decision. I am prepared to accept the Applicant’s account of the brief period of delay, based on the circumstances described by him.

5.  However, the most important consideration remains the merits of the proposed appeal (see Re MK HCMP 2609/2016, 10 January 2017, at §§7-8; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017, at §11; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017, at §§10-11). As can be seen from the Decision, I refused leave as I was not satisfied that the Applicant’s intended challenge to the Board’s Decision was reasonably arguable with any realistic prospect of success. In reaching that conclusion, I reminded myself of the enhanced standard of scrutiny to be applied, given the seriousness of the issues involved. I gave careful consideration to the Board’s findings, its application of the relevant legal principles, and its conclusion that there was no Torture Risk, BOR 2 risk, BOR 3 risk, or Persecution Risk. The assessment and evaluation of the evidence, COI materials, risk of harm, state protection, and the viability of internal relocation fell squarely within the Board’s remit. The Applicant was unable to demonstrate any error of law, procedural unfairness, or irrationality in the Board’s Decision. The Court does not re-adjudicate non-refoulement claims in the absence of valid public law grounds. The requirement for leave is precisely designed to filter out unarguable challenges such as the present case.

6.  The Applicant has not advanced any grounds of appeal against my decision whatsoever. At the hearing, he merely reiterates the threats he allegedly faces in his home country and refers to the fact that he is now married and claims to have no meaningful life to return to. He requests additional time and expresses a wish to submit further documents in support of his case. However, he has failed to identify what those documents are, explain how they are relevant to the intended appeal, or demonstrate how they would establish or substantiate it.

7.  I am therefore not persuaded that an extension of time should be granted to the Applicant to appeal the Decision. Allowing the Applicant to pursue a challenge that is bound to fail would only result in further delay, prejudicing the proper administration of the refoulement process.

8.  In these circumstances, I make an order that the Summons be dismissed.