RE AKHAND SHIMUL

HCAL 179/2019

[2022] HKCFI 386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 179 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 sneaked into Hong Kong on 9/12/2012. He was arrested on 5/4/2014. He lodged a non-refoulement claim on 7/4/2014.

2.  The basis of his claim was that he might be harmed or killed by his uncle if he returned to Bangladesh. His uncle was a member of the Awami League (“AL”). He was a member of the opposition party—Bangladesh Nationalist Party (“BNP”).

3.  He had a land dispute with his uncle. In 2010 and 2011, he and his family were assaulted twice by his uncle and people from “AL”. He was seriously injured and hospitalized for a few weeks. He thought his uncle wanted to eliminate him from politics while using the land dispute as an excuse. He had gone to Chittagong and Gazipur to stay away from his uncle. He left Bangladesh on 4/12/2012 for China.

4.  The Director rejected his non-refoulement claim on 4/1/2016 and 26/6/2017. The appeal to TCAB was dismissed on 11/1/2019.

5.  The adjudicator found that the applicant was not truthful. He initially said in the NCF that he was a member of BNP. However, he told the adjudicator that he was just a supporter. He was vague about his role in the BNP. He was unable to describe the flag of the BNP. He could not explain clearly the ownership of the land by inheritance. He was inconsistent about the cause of death of his brother. The adjudicator concluded that there was no real risk of harm.

6.  On 18/1/2019, the applicant applied for leave for judicial review of the decision of the TCAB.

7.  This court fixed a hearing on 26/7/2021. The applicant had nothing to update. He had no complaint against the TCAB.

8.  This court rejected his complaints. He was able to find language assistance by himself. The COI were from authentic sources and were relevant in assessing the situation in Bangladesh. The applicant should have sufficient time to challenge any of the COI before the TCAB hearing. He was not personally at risk despite that there was general situation of violence. He had no right for legal assistance at all stages of the application proceedings. This court agreed with the TCAB. The applicant was not credible. Leave was refused on 26/8/2021.

9.  The applicant filed a summons on 11/10/2021 for extension of time to appeal. He was out of time for more than a month.

10.  In his affirmation, he asserted that he did not know his leave application was rejected. He was only informed by the Immigration Department about it.

11.  In considering whether to extend time for appeal, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the merits of the intended judicial review; (4) prejudice to the respondent.[1]

12.  The delay was substantial. According to the court record, the decision was sent to his last known address on 26/8/2021. The address was the same as stated in the summons for extension of time. In fact, there was no problem in the mail before. The applicant did not explain why he could not receive the decision.

13.  In my judgment, there is no merit in the intended judicial review. Having considered all factors, I refuse the application for extension of time to appeal.