AKTER LAHMIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1959/2019

[2025] HKCFI 259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1959 OF 2019

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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 she lodged a non-refoulement claim with the Director of Immigration (“Director”). The Director rejected her application (“Director’s Decision) and she appealed to the Torture Claims Appeal Board (“Board”). Having considered her evidence, the Board, by its decision dated 26 June 2019 (“Board’s Decision”), rejected her 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.  The applicant failed to attend the court hearing scheduled for 26 September 2024. The Court proceeded to deal with her application for leave for judicial review according to the papers already placed before the Court.

4.  By an order dated 16 October 2024 (“Order”), the Court dismissed her application for the reason that there was no realistic prospect of success in her intended application.

5.  The applicant by a summons issued on 4 November 2024 (“Summons”) seeks extension of time to appeal against the Order, as the 14-day period for her to file her appeal under Order 53 Rule 3(4) of the RHC ended on 30 October 2024, and hence she was 5 days late with her intended appeal.

6.  In her supporting affirmation filed on 4 November 2024 (“Affirmation”), the applicant only stated that: “I crave leave to appeal out of time as I didn’t receive the order and judgment within 14 days. I should be given an [sic] reasonable opportunity to present my case.” She then produced the Order and the Court’s judgment of the same date as exhibits.

Discussion

7.  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.

8.  At the hearing of the Summons, the applicant said that she only obtained a copy of the judgment for her case from the Court on 4 November 2024. She attended the Immigration Department about 7 days prior to 4 November 2024 and was notified by the Immigration Officer that her case had finished. She checked on the internet and confirmed that a judgment had been issued in her case. She then came to the Court to obtain a copy of the judgment on 4 November 2024. By that time, she was already out of time to appeal against the Order.

9.  I noted that the applicant had not attended the previous court hearing on 26 September 2024 and that she had provided an address in the Affirmation which was different from the address in Fanling as advised to the Court by the Director of Immigration in a letter dated 22 July 2024. The applicant informed the Court at the hearing that she had moved away from the Fanling address after 2019. She agreed that she had not informed the Court of her change of address prior to the filing of the Affirmation.

10.  In the applicant’s case, a delay of 5 days may not be substantial. 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 may reasonably be argued that the Board’s decision was unfair or unreasonable either in the Summons or in the Affirmation, nor was she able to do so at the hearing of the Summons.

11.  As the applicant had not attended the last court hearing on 26 September 2024, I allowed the applicant another opportunity at the hearing of the Summons to make submissions on her case to the Court after I had explained to her the nature of a judicial review.

12.  The applicant confirmed to the Court at the hearing of the Summons that she did not find any error of law, procedural unfairness or irrationality in the Board’s Decision. She only maintained that it was still not safe for her to return to Bangladesh. She needed another 1 to 1.5 years for her brother to come back from Italy to build a safe environment in Bangladesh before she could safely return.

13.  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 her intended appeal.

14.  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].”

15.  The applicant’s claim was based upon her allegation that if refouled, she would be harmed or killed by supporters of the Awani League, a political party in Bangladesh, because she refused to join that party.

16.  Having considered the evidence, the Board did not accept the applicant’s evidence as it found that she was not a witness of truth. It dismissed her appeal on that basis.

17.  The applicant is not able to raise any valid reason to challenge the Board’s Decision. Thus, there is not any realistic prospect of success in her intended appeal.

18.  In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.