ZAHIDUL ISLAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1889/2018

[2023] HKCFI 2249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1889 OF 2018

_____________

BETWEEN

_____________

_____________

D E C I S I O N

_____________

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”).

2.  Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), dismissed his appeal. He applied to the Court for leave to apply for judicial review of the Board’s Decision.

3.  This Court, by Form CALL-1 dated 26 January 2023 (“the Court’s decision”) refused his application.

4.  The applicant filed a summons and an affirmation on 9 August 2023 applying for extension of time for filing the notice of appeal.

5.  In his affirmation, he said that the judge had failed to seriously consider his application.

Discussion

6.  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.

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.  The deadline for his appeal is 10 February 2023. The applicant is late for about 6 months. He has not given any reason in his affirmation to explain his delay. I shall, nevertheless, consider the merits of his application.

9.  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].”

10.  The applicant applied to the Director for non-refoulement protection. However, he did not submit the supplementary claim form (“SCF”) as requested by the Director. His application was deemed to have been withdrawn. He applied to the Director for re-opening his claim. Having considered his explanation, the Director refused to re-open his claim.

11.  He appealed to the Board. He was also late in filing the notice of appeal. He gave his explanation that he was imprisoned and was without language assistance. The Board did not accept his explanation because he did not state that he received the Director’s Decision late, nor did he say that he was unable to have access to interpreter’s service within the prison. Furthermore, he did not explain the lengthy delay for filing his notice of appeal.

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