RE MIAH MD JALAL

HCAL 2818/2018

[2021] HKCFI 3682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 2818 OF 2018

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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 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 26 August 2021 (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 11 November 2021 for appeal against the Order out of time.

5.  In his affirmation in support of his application, he said that he did not receive the Court’s decision on time and he was not familiar with the appeal procedures.  He does not agree with the Court’s decision, which made him unhappy.

Discussion

6.  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. 

7.  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.

8.  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].”

9.  I shall therefore first consider the merits of his intended appeal.

10.  The Board rejected his appeal and affirmed the Director’s Decision.  The Board had conducted a protracted cross-examination of his evidence.  The Board finally rejected his factual evidence for the reasons that his evidence was inconsistent with his statement given to the immigration officer and he was unable to give an explanation for such inconsistencies.  The Board concluded that he had not told the truth in relation to his claims to have been a supporter/associate and member of BNP and to have been pressured and threatened and assaulted by AL supporters and members and leaders, and to have been arrested and assaulted and tortured by police, and to have been the accused person in false cases.  In a nutshell, the Board did not accept that the applicant feared returning to Bangladesh for the reasons he had claimed or for any other reasons.  The Board also rejected that he would be subjected to those risks he alleged if he returned to Bangladesh. See paragraph 54-117 of the Board’s Decision.

11.  The applicant has not been able to set out any valid ground to challenge the Board’s decisions.  Nor can he point out any error on the part of this Court in the assessment of his application.

12.  There is no realistic prospect of success in his intended appeal.  I therefore dismiss his application.