ASIM HAFIZ TAHIR MAHMOOD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2625/2018

[2023] HKCFI 2636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2625 OF 2018

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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 claim by 2 Decisions, the First Decision being on Torture risk, BOR 3 risk and Persecution risk; and the Second Decision being on BOR 2 risk.

2.  He had appealed the Director’s First Decision to the Board and the Board, by its First Decision, dismissed his appeal. The applicant had not pursued further with the Board’s First Decision.

3.  The applicant further appealed the Director’s Second Decision to the Board. He was 1.5 years late in filing the notice of appeal. The Board, by the Board’s Second Decision, refused to extend time for him to file his notice of appeal. He applied to the Court for leave to apply for judicial review of the Board’s Second Decision.

4.  This Court, by Form CALL-1 dated 25 January 2022 (“the Court’s decision”) refused his application. The deadline for the applicant to appeal against the Court’s decision is 9 February 2022.

5.  The applicant filed a summons and an affirmation on 24 August 2023 applying for extension of time for filing the notice of appeal against the Court’s decision.

6.  In his Summons, he said that he disagrees with the Judge’s decision as he cannot go back to his country because his life will be in danger.

Discussion

7.  Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3 of the RHC, having considered the applicant’s reasons, I decide to determine this application 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 time should be extended for filing his notice of appeal: (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 9 February 2022. The applicant is late for about 1.5 years. He has not given any reason in his affirmation to explain his delay. I shall, nevertheless, consider the merits of his application.

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 Board, in the Board’s Second Decision, refused to extend time for the applicant to file his notice of appeal. As the Board had considered the merits of his claim in his appeal against the Director’s First Decision on Torture risk, BOR 3 risk and Persecution risk, the Board was entitled to take that into account when it considered the applicant’s application for extension of time to file his notice of appeal against the Director’s Second Decision. Since the Board had considered the merits of the applicant’s claim and found that there were no merits in his claim, the Board was entitled to refuse to extend time for him to file his notice of appeal against the Director’s Second Decision.

12.  The applicant is unable to raise any valid ground to challenge the Board’s Second Decision.

13.  I find that the applicant has not been able to show that there is any realistic prospect of success in his intended appeal.

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