HENDI PINTANIUS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2083/2019

[2025] HKCFI 1452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2083 OF 2019

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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 14 June 2019 (“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 30 October 2024 and the Court proceeded to deal with the Leave Application according to the papers already placed before the Court.

3.  By an order dated 28 November 2024 (“Order”), the Court dismissed the Leave Application for the reason that there was no realistic prospect of success in his intended judicial review application.

4.  The applicant by a summons issued on 20 February 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 12 December 2024, and hence he was 70 days late with his intended appeal.

5.  In his supporting affidavit also filed on 20 February 2025 (“Affidavit”) for the Time Application, the applicant stated that: “My explanation for the delay in appealing is I didn’t receive any letter until now. I only checked in the internet as advised by the Immigration officer that my case is overdue.”

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 28 March 2025 (“Court Hearing”) despite a notice of hearing dated 28 February 2025 having been sent to his address stated on the Affidavit and not being returned. I proceeded to deal with the Time Application according to the papers already placed before the Court.

8.  I noted that the addresses of the applicant provided by the applicant in the Form 86; advised by the Immigration Department to the Court in a letter dated 3 September 2024 (“Letter”); and stated in the Affidavit were on different floors of the same building in Sham Shui Po. In the Form 86, it was “Room C, 8/F’. In the Letter, it was “Room C, 6/F”. In the Affidavit, it was “Room C, 3/F”.

9.  The Order was sent by the Court to the “6/F Address” on 28 November 2024 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 “3/F Address” and whether he had redirected his mails from the “6/F Address” to the “3/F Address”. The applicant had not explained why he did not notify the Court of his change of address for service after he moved away from the “8/F Address” and he failed to attend the Court Hearing to clarify the above to the Court.

10.  In such circumstances, I do not accept the applicant’s explanation for the delay as satisfactory. A delay of 70 days is a very substantial delay in view of the statutory time limit being 14 days. 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 Affidavit.

11.  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 this Court was wrong in refusing the Leave Application.

12.  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].”

13.  The applicant’s case was that his life was said to be in danger from powerful business, government and military figures because he had information about their involvement in corruption.

14.  Having considered the evidence, the Board found that many aspects of the applicant’s claims and evidence were inconsistent or otherwise difficult to credit and a number of other aspects of the applicant’s claims also made little, if any, sense. The Board did not accept the core story of the applicant and consequently did not accept that he faced any real or substantial risk of serious or significant harm for the reasons claimed if he were returned to Indonesia. The Board dismissed his appeal on such basis.

15.  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.

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