RE MANIK MD MAHAMUDUN NABI

HCAL 405/2019

[2021] HKCFI 2147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 405 OF 2019

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D E C I S I O N

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The application

1.  This is an application from the applicant for extension of time to appeal against the Court’s decision as described below.

2.  The applicant made an application for leave to apply for judicial review of the Decision dated 16 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

3.  The applicant is a Bangladeshi national.  He came to Hong Kong as a visitor, but he overstayed.  On 17 September 2015, he lodged his non-refoulement claim, which was rejected by the Director of Immigration on 2 May 2018.

4.  He appealed to the Board.  The Board refused his appeal.

5.   The applicant filed Form 86 on 13 February 2019 for leave to apply for judicial review of the Board’s Decision. The Court had not yet fixed a hearing date for his application.

6.  By Affirmation dated 17 March 2020, the applicant applied, on an urgent basis, to withdraw his application for the reason that he wanted to go back to his own country to receive a heart operation.

7.   In the circumstances, it was clear that the applicant had no intention of proceeding with his application, which should be dismissed.

8.  Accordingly, I acceded to his request and, by an Order dated 7 May 2020 (the “Court’s decision”) dismissed his application.

DISCUSSION

9.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

10.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (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.

11.  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].”

12.  The applicant has taken out a summons dated 16 June 2020 and applied for extension of time to appeal against the Court’s decision.  The file was misplaced and the application was not able to be dealt with within the usual time.

13.  In his affirmation in support of his application, the applicant said that he withdrew his application because he was suffering from diabetes and heart disease and he wanted to go back to his own country.  However, the situation is not good because of the Covid-19 virus in Bangladesh.  Also, he does not understand English and he needs assistance from other people for the Court’s decision.

14.  Since the application was dismissed upon his application for withdrawal, there is no reasonable prospect of success in his intended appeal.  His reasons in support of his application do not assist his application.

15.  I refuse to extend time for the applicant to appeal out of time.  Accordingly, I dismiss his application.