TSHIKANGALA KITENGE PIERROT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 777/2019

[2024] HKCFI 730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 777 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”). By Notice of Decision dated 1 September 2016 (“the Director’s First Decision”) and Notice of Further Decision dated 27 July 2017 (“the Director’s Second Decision”), the Director rejected his application He appealed against the Director’s First Decision to the Torture Claims Appeal Board (“the Board”). He did not appeal against the Director’s Second Decision. Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s First 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 15 February 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 2 March 2023.

4.  By summons filed on 31 January 2024, the applicant applied for appeal against the Court’s decision out of time. His application is late for about 10 months.

5.  In his affirmation in support of his application, the applicant said that the Court’s decision was reached unreasonably. He did not explain why he is late to file the notice of appeal.

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 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.

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 the Democratic Replubic of Congo (“DRC”) government or Mr. Joseph Kabila, the president of DRC, due to his connection with a human rights non-governmental organization named “La Voix des Sans Voix”.

10.  The Director rejected his claim because it was not substantiated. He appealed to the Board.

11.  He was late to file the notice of appeal with the Board. The deadline for appealing against the Director’s First Decision dated 1 September 2016 is 16 September 2016. He filed the notice of appeal on 7 October 2016. He was therefore 19 days’ late. He had given his explanation for the delay. Having considered his explanation, the Board did not accept his explanation. The Board then proceeded to consider the merits of his claim by reference to the materials and COI before it. The Board concluded that his claim was devoid of merits. Therefore, the Board refused to extend time for the applicant to file the notice of appeal. In effect, his appeal had failed.

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

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

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