RE MD JOHIRUK ISLAM

HCAL 1750/2018

[2021] HKCFI 3140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  1750 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 Decisions, 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 Decisions.

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 Order dated 5 September 2019 (the “Court’s decision”), the Court refused to grant him leave to apply for leave to apply for judicial review of the Board’s Decision and dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons on 17 November 2020 for appeal against the Court’s decision out of time.  This file was misplaced and has taken a longer time than usual for its disposal.

5.  In his affirmation in support of his application, he submitted that there are good grounds of appeal, which it is unnecessary to be considered by the Court at this stage; that the decisions of the Director and the Board are wrong because they had not made proper enquiry of his situation in Bangladesh.  They are invited to have a tour in Bangladesh themselves.

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.  The Board considered the applicant’s case and found that there were inconsistencies and contradictions in his evidence.  It finally came to a conclusion that the applicant failed to establish that he was subjected to ill-treatment at the hand of Abu in Bangladesh as he claimed, or at all [95].

10.  He had raised a number of grounds for his challenge against the Board’s Decision.  The Court had dealt with each of those grounds and found that they were not valid grounds.

11.  His grounds for this application are not valid.  He has to state all his grounds in this application for the Court’s consideration.  It is not necessary for the Director or the Adjudicator of the Board to go his country for enquiry.  They are entitled to rely upon the country of origin information for the enquiry, which they had done.

12.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

13.  The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error.  There is no realistic prospect of success in his intended appeal against the Court’s decision.

14.  In the circumstances, I refuse to extend time for his appeal against the Court’s decision.  Accordingly, I dismiss his application.