RE ALMAS

HCAL 1749/2018

[2021] HKCFI 2048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1749 OF 2018

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D E C I S I O N

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1.  The applicant is from Bangladesh. He was born on 1/2/1975. He came to Hong Kong on 17/7/2006 as a visitor [1]. He overstayed until he was arrested on 16/3/2008. He lodged a torture claim on 5/4/2008. It was treated as a non-refoulement claim upon the commencement of the USM on 3/3/2014.

2.  The basis of his claim was that he might be harmed or killed by members of the Awami League (“AL”)  if he returned to Bangladesh.  He was a member of the opposition party, Bangladesh Nationalist Party (“BNP”).  He was an active member.

3.  The Director rejected his non-refoulement claim on 7/7/2015 [2] and 21/4/2017 [3].  The applicant appealed to the TCAB.  The appeal was dismissed on 15/3/2017 and 27/10/2017 respectively.

4.  On 27/8/2018, the applicant applied for leave for judicial review of the decision of the TCAB dated 15/3/2017.  He was about 14 months out of time.

5.  This court fixed a hearing on 24/11/2020 on his request.  The notice of hearing was sent to his last known address by registered mail.  There was no return of mail.  He was absent from the hearing.

6.  This court considered his leave application on paper.  The applicant was out of time for 14 months in his leave application.  He gave no explanation for the delay.  In his Form 86, he raised three major grounds which were rejected by this court.[4]  There was no error of law or procedure.  The decision of the TCAB was reasonable.  There was no merit in the intended judicial review.  This court found no good reason to extend the time for the leave application and refused leave on 13/1/2021.

7.  The applicant did not seek leave for judicial review of the further decision of the TCAB dated 27/10/2017.  It was in relation to BOR 2 ground.  This court had considered the relevant TCAB decision.  The applicant was about 5 weeks out of time in filing the notice of appeal to the TCAB.  This court agreed with the TCAB that there was no merit in the intended appeal.  It would not be unjust to refuse the late filing.[5]

8.  The applicant filed a summons on 25/2/2021 for extension of time to appeal against the decision of this court.  He was out of time for about one month.

9.  In his affirmation in support of the application for extension of time, the applicant indicated that he only received the court decision on 18/2/2021.  He used his friend’s address as his correspondence address.  His friend was late in telling him about the court decision.  That explained his delay in filing an appeal.  Secondly, he had since taken legal advice.  There was a good ground of appeal which was not raised during the leave application.  This justified an extension of time for appeal.

10.  In considering whether to extend time for appeal, this court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the merits of the intended judicial review; (4)  prejudice to the respondent.[6]

11.  The applicant was out of time for about a month.  He used his friend’s address as his correspondence address.  He must bear the consequence of any delay or failure in the mail.  I do not accept this explanation.

12.  He mentioned that there was a good ground for judicial review which justified extension of time.  There was no detail about it.  I do not find this of any assistance.  I then turn to the merits of the intended judicial review.

13.  The applicant asserted that he was attacked by AL members in 4 incidents from April 2005 to February 2006.  They forced him to attend meetings of AL.  The attacks were mainly punches and kicks.  It was in the last incident that the attackers carried knives and choppers.  However, he managed to escape in the last incident.  He sustained bruises and abrasions in the other incidents.

14.  The Director found that the injuries on the applicant did not amount to ‘a minimum level of severity’.  There was no official involvement.  At the time of the assessment, the applicant had left Bangladesh for 9 years already.  There was no evidence that the AL members would still target him.  He was only a low ranking member of the BNP.  It was inexplicable that the AL members were keen to secure his attendance in their meetings.  He had delayed for 20 months before lodging his torture claim in Hong Kong.  The COI indicated reasonable State protection.  There were viable options for relocation.  The Director rejected his claim on all grounds.[7]

15.  The adjudicator found that the attacks could not occur during the period of the caretaker government [8] as the applicant claimed.  The AL party was in power for another 5-year-term from 2014.  There was no reason for the AL members to attack him.  The applicant had delayed his torture claim for about 18 months.  This was inconsistent with his assertion that he came here for protection.  Given the lapse of time and that the applicant was not a prominent member of the BNP, it was unlikely that the AL members would still target him. [9]

16.  I agree with the decision of the TCAB.  The applicant was not credible.  There was no real risk of harm.

17.  In my judgment, there is no merit in the intended judicial review.  I refuse the application for extension of time to appeal.