SANJU MASIH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2036/2024

[2025] HKCFI 1710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2036 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 (“Director”).  The Director rejected his application (“Director’s Decision”)  and he appealed to the Torture Claims Appeal Board (“Board”).  Having considered his evidence, the Board, by its decision dated 17 October 2024 (“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 (“Form 86”)  to apply for leave to apply for judicial review of the Board’s Decision (“Leave Application”).  The applicant failed to attend the hearing for the Leave Application scheduled for 16 January 2025 and the Court proceeded to deal with the Leave Application according to the papers already placed before the Court.

3.  By an order dated 12 February 2025 (“Order”), the Court dismissed the Leave Application for the reason that there was no realistic prospect of success in the applicant’s intended judicial review application.

4.  The applicant by a summons issued on 17 March 2025 (“Summons”)  seeks extension of time to appeal against the Order (“Time Application”), as the 14-day period for him to file his appeal under Order 53 rule 3(4)  of the RHC ended on 26 February 2025, and hence he was 19 days late with his intended appeal.  

5.  In his supporting affirmation also filed on 17 March 2025 (“Affirmation”)  for the Time Application, the applicant gave the following explanation for his lateness in making the intended appeal:

“I was a litigant in person, illiterate, and unrepresented, thereby making me unware of the rules regarding the time limit. I did not receive any correspondence from the Court regarding my hearing date and Judicial Review being dismissed”.

Discussion

6.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (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 extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

7.  The applicant failed to attend the hearing of the Summons scheduled for 15 April 2025 (“Court Hearing”)  despite a notice of hearing dated 24 March 2025 having been sent to his address stated on the Affirmation and not being returned.  I proceeded to deal with the Time Application according to the papers already placed before the Court.

8.  Ignorance of rules and regulations is usually not an acceptable explanation for late application in court proceedings.

9.  I noted that when the applicant issued the Form 86, he was in custody in Castle Peak Bay Immigration Centre but the Court was advised by the Immigration Department in a letter dated 25 November 2024 (“Letter”)  that the Applicant had reported his latest address at Yuen Long On Ning Road (“Yuen Long Address”)  which was different from the applicant’s address stated in the Affirmation which was at To Kwa Wan (“To Kwa Wan Address”).

10.  The Order was sent by the Court to the applicant at the “Yuen Long Address” on 12 February 2025 and not being returned.  As such, the applicant should have received the Order.  The applicant did not inform the Court when did he move to the “To Kwa Wan Address” and whether he had redirected his mails from the “Yuen Long Address” to the “To Kwa Wan Address”.  The applicant also did not inform the Court when and how he received the Order.  The applicant had not explained why he did not notify the Court of his change of address for service after he was released from custody and he failed to attend the Court Hearing to clarify the above to the Court.

11.  In such circumstances, I do not accept that the applicant has satisfactorily explained for the delay.  A delay of 19 days may not be very substantial but more importantly, the applicant failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the Board’s Decision or why it might reasonably be argued that the Board’s Decision was unfair or unreasonable, either in the Summons or in the Affirmation.

12.  In the Affirmation, the applicant only asserted that the decision of the Court on his application for leave for judicial review of the Board’s Decision was reached unfairly as he was not given an opportunity to clarify his case and situation in his country.  He disagreed to the Court’s decision and asserted that he feared that he would be killed or harmed if he returned to his country.  These are bare assertions without particulars or supporting.  He did not explain why he did not receive the notice of hearing dated 24 December 2024 for the Leave Application but had received the Order when both were sent by the Court to the same “Yuen Long Address” and not returned.

13.  In the absence of any error of law, procedural unfairness or irrationality in the Board’s Decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal in saying that the Court was wrong in refusing the Leave Application.  

14.  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].”

15.  The applicant’s case was that he would be harmed or killed by his paternal uncle (“Uncle”)  and supporters of Bharatiya Janata Party (“BJP”), a political party in India because of his support to the Indian National Congress, another political party in India.

16.  Having considered the evidence, the Board found that the applicant’s case was both vague and unbelievable in both his oral evidence and his written case.  The Board did not accept his alleged threats and assaults by Uncle and the BJP supporters.  The Board found that even if the applicant’s evidence were accepted to the extent that the stated threats had been issued towards him, the applicant still failed to establish his case on all applicable grounds under the unified screening mechanism for reasons set out in the Board’s Decision.  The Board dismissed his appeal on such basis.

17.  The applicant was unable to raise any valid reason to challenge the Board’s Decision in the Leave Application or in this Time Application.  Thus, there is not any realistic prospect of success in his intended appeal against the Order.

18.  In the circumstances, I refuse to extend time for his appeal.  Accordingly, I dismiss this Time Application.