|
HCAL 2497/2019
[2025] HKCFI 3213
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2497 OF 2019
_____________
BETWEEN
|
Qaisar Naveed |
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: |
12 August 2025 |
_____________
DECISION
_____________
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 Judgment dated 11 March 2025 (“the Judgment”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application.
4. The Judgment was sent to the applicant on 11 March 2025 at his last known address without being returned from the Post Office. He is deemed to receive the Judgment[1].
5. The time for filing the notice of appeal expired on 25 March 2025[2].
6. By summons filed on 20 May 2025, the applicant applied for appeal against the Court’s decision out of time. He is late for about 7 weeks.
7. In his affirmation support of his application, the applicant said that he did not receive the Judgment because he was being detained in the Correction Institution. He further said that the Judgment was unfair because he was not given a chance to explain his situation in Court.
Discussion
8. Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[3].
9. 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.
10. 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].”
11. The applicant claimed that if refouled, he will be harmed or killed by people from the Pakistan Muslim League (Nawaz) (“PML(N)”) because of his participating in the Pakistan People Party (“PPP”) and refusal to join PML(N).
12. The Director rejected his claim because it was not substantiated. He appealed to the Board.
13. Having considered the evidence, the Board dismissed his appeal for the reason that since the applicant did not appear before it, it found that he was not able to establish his claim and it could not believe his evidence.
14. Those reasons under paragraph 7 are not valid for his delay because he has the duty to keep the Court updated of his address[4].
15. As the applicant was absent before the Board and there is no reason for his doing so up to date, the Board was entitled to refuse to accept his evidence. He has given no valid reason to challenge the Board’s Decision.
16. There is no valid reason from the applicant to challenge the Judgment.
17. 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] Re: Ravinder Singh [2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023
“17. The applicant had not filed any notice of change of address for service to notify of any changes in his address. According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post. He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday. He was therefore deemed to have received the Court’s decision on 1 April 2022. ”
[2] The public holidays are included in the 14-day period as per Order 2(5) of the Rules of the High Court
2. Reckoning periods of time (O. 3, r. 2)
(5) Where, apart from this paragraph, the period in question, being a period of 7 days or less, would include a specified day, that day shall be excluded.
(35 of 1998 s. 5; 18 of 2016 s. 5)
[3] Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022:
“16. … … In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court.”
[4] The Court of Appeal in Re: Karamjit Singh [2018] HKCA 460, Hon Chu JA and Barma JA, 2 August 2018 held:
“14. … …It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346….”
|