RE NAZIM MD ANOARUL

HCAL 1073/2019

[2022] HKCFI 3022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1073 OF 2019

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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 for staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, 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 Form CALL-1 dated 1 September 2022 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review.

4.  The applicant filed a summons on 16 September 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he did not get the Court’s decision on time. He only got the Court’s decision on 15 September 2022. According to the record, the Court’s decision was sent to him at his last known address on 1 September 2022.

Discussion

5.  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.

6.  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. The deadline for appeal is 15 September 2022 and the delay is only one day. I shall first consider the merits of the case.

7.  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].”

8.  The applicant claimed that, if refouled, he would be harmed or killed by members of the Awami League (“AL”) because he refused to join them.

9.  By way of the Director’s Decision, the Director refused the applicant’s claim for the reason that his claim was not substantiated. The applicant appealed to the Board.

10.  The Board noticed that the applicant’s oral evidence was generally consistent with his evidence in the written statements and thus accepted his account of events [30]. However, it considered that the AL members had no intention to seriously harm or kill the applicant. If they intended to do so, they could have easily done so in the first attack [31]. Further, the Board found that the applicant had minimal or nil threat to the AL as he was only an ordinary member of the BNP [32]. Thus, the Board concluded that the applicant’s perceived risk of harm was not genuine nor substantive [33]. In addition, the Board found that, after reviewing the country of origin information, both state protection and internal relocation were viable alternatives [34]-[38]. The references refer to the Board’s Decision.

11.  It is clear that the Board dismissed his appeal with the reasons above. In the applicant’s affirmation in support of his application for extension of time to appeal, he had not set out any reason to show that he has any reasonable prospect of success in his intended appeal.

12.  In the circumstances, I refuse to extend time for the applicant to file his notice of appeal. Accordingly, I dismiss his application.