LE DE AN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 993/2022

[2023] HKCFI 2112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 993 OF 2022

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BETWEEN

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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”).

2.  He was late in filing the notice of appeal and having considered his explanations, the Board, by its Decision (“the Board’s Decision”), refused to extend time for him to file the notice of appeal. He applied to the Court for leave to apply for judicial review of the Board’s Decision.

3.  This Court, by Form CALL-1 dated 3 January 2023 (“the Court’s decision”) refused his application.

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

5.  In his affirmation, he said that he wants extension of time for his appeal and he has a good ground of appeal that is not necessary to be considered at this stage.

Discussion

6.  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.

7.  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.

8.  The deadline for his appeal is 18 January 2023. The applicant is late for about five and a half months. I shall consider the merits of his application.

9.  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].”

10.  The applicant’s claim is that, if refouled, he would be harmed or killed by his creditor.

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

12.  His appeal to the Board was late. His explanations to the Board for his delay in filing his notice of appeal were not accepted by the Board. The Board refused to extend time for him to file the notice of appeal.

13.  He had applied to the Court for leave to apply for judicial review of the Board’s Decision. The Court had considered the case and agreed with the Board’s decision of refusing extension of time for him to file the notice of appeal with the Board.

14.  The applicant’s submission that it is not necessary for him to state his ground in support of this application is misconceived. He has raised no valid ground to challenge the Court’s decision.

15.  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.

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