RE MD KAWSAR

HCAL 1612/2019

[2021] HKCFI 2454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1612 OF 2019

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D E C I S I O N

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1.  The applicant is from Bangladesh. He was refused entry to Hong Kong on 26/10/2009[1]. He filed a torture claim immediately. It was taken as a non-refoulement claim when the USM commenced in 2014. The Director rejected his claim on 26/8/2015 and 26/4/2017 respectively [2]. His appeal was dismissed on 2/3/2017 and 31/5/2019 respectively [3] by the TCAB.

2.  The applicant feared that he would be harmed or killed by Barek and members of the “AL” [4]. The incident arose from a land dispute.  There was also a false charge of possession of an illegal firearm against him.

3.  The applicant was the publicity secretary of the youth wing of “BNP” [5] from 2002—2004.  Barek was once a district secretary of “AL”. 

4.  About January 2007, his friends had a land dispute with a Hindu family.  It flared up into a fight between AL and BNP supporters.  Later, someone threw acid at one member of that Hindu family.  He and his friends were the suspects of the attack.  He fled and stayed at Dhaka for a year.   Later in 2009, he learned that the charge against his friends were dismissed.  However, Barek demanded his family to pay 2 million Takas or else he would be killed.

5.  Around August 2009, he was arrested by the police on his way to visit his sick mother.  The police searched his home and found a revolver.  He was detained for 2 months but subsequently granted bail.  He thought Barek was behind this incident.  On the advice of his father, he left Bangladesh for Hong Kong by air on 25/10/2009.

6.  The Director concluded that there was low risk of harm.  The case on the attack of the Hindu family was dismissed.  There was no physical injury inflicted on him or his family.  He was safe in Dhaka.  The extortion of money by Barek was a private matter.  The State was not involved.  He was a low ranking member of BNP long time ago.  There was no reason to attack him because of this association.  There was reasonable State protection and relocation options.  The documents [6] submitted could not take his case any further.  The Director dismissed his claims on all grounds.

7.  The TCAB found that the applicant’s evidence was vague and unreliable.  The land dispute was a private matter.  The State was not involved.  The applicant could escape arrest for over a year staying in Dhaka.  There was no detail about the extortion by Barek.  The applicant’s father did not complain to a higher level.  In fact, Barek never assaulted his family.  The charge sheet and the arrest warrant indicated that the applicant was a fugitive of justice.  He was not entitled to non-refoulement protection.  There was reasonable State protection and relocation option.  There was no significant additional evidence in relation to BOR 2 claim.  There was no need for a hearing.  The adjudicator dismissed the appeal on all grounds.

8.  On 13/6/2019, he filed the leave application for judicial review of the TCAB decision dated 31/5/2019 only.[7]  In his affirmation in support, he complained that the adjudicator was unreasonable not to fix an oral hearing for his appeal on the BOR 2 claim.  He also complained that the lawyer from the DLS could not understand his case.  He could not understand the appeal bundle.  He also mentioned that his younger brother had disappeared in January 2017.  He thought it was due to the action of the Bangladesh government and the AL people.

9.  This court fixed a hearing on 1/12/2020.  The applicant had nothing to update.  He did not know the progress of the illegal firearm charge.  He maintained it was a false case.  There was recent killing by the police.

10.  This court rejected all his grounds [8]. In gist, this court opined that the arrest warrant was issued as the applicant had absconded.  The charge should be determined by the court in Bangladesh albeit that he insisted it was false.  He had signed the NCF to confirm its accuracy and submitted documents.  As there was no additional evidence in relation to the BOR 2 claim, the adjudicator was right not to hold another oral hearing.  In fact, there was a hearing held earlier in relation to the other grounds.  The alleged disappearance of his brother took place after the assessment by the Director and the TCAB.  It was a bare assertion.  It was difficult for any tribunal to deal with it at this stage.  This court concluded that there was no error of law and procedure.  The decisions of the TCAB were reasonable.  Leave was refused on 9/2/2021.

11.  The applicant filed a summons on 19/3/2021 for extension of time to appeal against the refusal of leave.  He was about 4 weeks out of time.  In his affirmation, he asserted that he did not get any letter from the court.

12.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.[9]

13.  There was a substantial delay of 4 weeks.  He did not give any explanation.  The decision of this court was sent on 9/2/2021 to the same address as in the summons.  There was no return of mail.

14.  I have grave doubt about the reason given.  However, at this stage, the merits of the intended judicial review is most important [10].

15.  I agree with the decisions the adjudicator.  His evidence was not credible.  On the face of the documents, he was a fugitive of justice.  The intended judicial review was of no merit.  

16.  In the circumstances, I refuse the application for extension of time to appeal.