QASIM MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 834/2019

[2023] HKCFI 3069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 834 OF 2019

_____________

_____________

________________

D E C I S I O N

________________

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 31 May 2023 (“the Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons on 4 October 2023 for extension of time to file his notice of appeal. In his supporting affirmation, he said that he did not receive the Court’s decision. According to the record, the Court’s decision was sent to his last known address on 31 May 2023 without being returned 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 on paper 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 14 June 2023. The applicant is late for about three and a half months. 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 was based upon his allegation that if refouled, he would be harmed or killed by his paternal uncle due to a land dispute.

10.  Having considered the evidence, the Board found that there were inconsistencies of his evidence and his evidence was therefore not reliable; that state protection was available to him and internal relocation was an option open to him. On those bases, it dismissed his appeal.

11.  The applicant has not been able to raise any valid reasons to challenge the Board’s Decision.

12.  There is not any realistic prospect of success in his intended appeal.

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