FAIYAZ AHMED alias SHAJAHAN SHAIKH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2147 of 2020

[2025] HKCFI 308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2147 OF 2020

____________

____________

______________

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 10 December 2024 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application.

4.  The Court’s decision was sent to the applicant on 10 December 2024 at his last known address. However, the applicant requested the Court to send the Court’s decision to Tai Tam Gap prison. The Court acceded to his request and sent a copy of the Court’s decision to him on 8 November 2024. By virtue of to Order 65, rules 5 (2)(b) and 7(2) of the Rules of the High Court, it is deemed to be served on the next following day, not being a specified day such as Saturday or a general holiday. He is deemed to receive the Court’s decision on 9 November 2024.

5.  The time for filing the notice of appeal expired on 23 November 2024.

6.  By summons filed on 3 January 2025, the applicant applied for appeal against the Court’s decision out of time. He is late for 1 month and 8 days.

7.  In support of his application, the applicant simply asked for an extension of time.

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[1].

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 would be harmed or even killed by members of the Pakistan Muslim League (Nawaz) (“PML(N)”) because he refused to join them.

12.  The Director rejected his claim because it was not substantiated. He appealed to the Board.

13.  Having considered the evidence, the Board found that the applicant’s claim was unfounded and internal relocation would be viable if he returned to his country. It therefore dismissed his appeal.

14.  There is no valid reason from the applicant to challenge the Board’s Decision. It is trite law that the Court should not interfere with the Board’s findings without good reason.

15.  There is no valid reason from the applicant to challenge the Court’s decision.

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