|
HCAL 1225/2019
[2024] HKCFI 1420
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1225 of 2019
_____________
|
BETWEEN
|
| |
Md Serajul Murir alias Muir Abms |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
_____________
| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: |
14 June 2024 |
________________
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”). Having considered his evidence, the Board, by its Decision (“the 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 to apply for leave to apply for judicial review of the Board’s Decision.
3. By Order dated 7 November 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 Court’s decision was sent to the applicant on 7 November 2023 without being returned by the Post Office.
4. The deadline for appeal is on 22 November 2023.
5. By summons filed on 21 March 2024, the applicant applied for appeal against the Court’s decision out of time. He is about 4 months late.
6. In support of his application, the applicant filed an affirmation, in which he said that he did not receive the Court’s decision until recently the immigration officer so informed him. Earlier on, he intended to return to his country and he submitted his wish to the immigration officer. However, he obtained information that it is still dangerous for him to return to his country. Now, he wants to appeal the Court’s decision out of time.
Discussion
7. Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper 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 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. I shall consider the merits of his case.
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 said that if refouled, he would be harmed or killed by members of the Awami League because of his involvement with the Jamaat-e-Islami and the Pragatisheel Ganatantrik Shakti.
11. The Director rejected his claim because it was not substantiated. He appealed to the Board.
12. Having considered the evidence, the Board did not accept his evidence in support of his claim and that internal relocation should be a viable option for him.
13. As to the grounds raised in paragraph 6, the Court’s decision had been sent to his last known address without being returned from the Post Office. He is deemed to receive the Court’s decision.[1] There is no valid reason from the applicant to challenge the Board’s Decision.
14. In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.
| |
(K.W. Lung)
Deputy High Court Judge
|
The applicant was unrepresented.
[1] Under section 37 ZV of the Immigration Ordinance:
Notices
(1) A notice or other document (howsoever described) required to be served or given (howsoever described) by the Director, an immigration officer or the Appeal Board on or to another person under this Part may be served on or given to that other person—
(a) …;
(b) by leaving it for the person, or by sending it by post addressed to the person—
(i) if the person is a claimant, at the last known residential or correspondence address provided by the claimant to the Director or the Appeal Board under section 37ZA(2)
|