ABDUL WAHAB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1126/2022

[2023] HKCFI 1472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1126 OF 2022

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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 application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decisions (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decisions.

2.  This Court, by Form CALL-1 dated 28 March 2023 (“the Court’s decision”) refused his application.

3.  The applicant filed a summons and an affirmation on 12 May 2023, applying for extension of time for filing the notice of appeal.

4.  In his affirmation, he said that he did not receive the Court’s decision. According to the record, the Court’ decision was sent to the applicant’s last known address without return from the Post Office.

Discussion

5.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

6.  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.

7.  The deadline for his appeal is 12 April 2023. The applicant is late for about one month. I shall consider the merits of his case.

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’s claim is that, if refouled, he would be harmed or killed by his uncle and cousins.

10.  The Director of Immigration refused his application for the reason that his claim was not substantiated. He appealed to the Board.

11.  However, the applicant applied to the Board to withdraw his appeal, which application was approved by the Board. As a result, the applicant’s appeal had been finally determined and disposed of by the Board.

12.  As the applicant had withdrawn his appeal, his application for leave for judicial review the Board’s Decision was dismissed by the Court’s decision.

13.  In the circumstances, 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.