RE MD NEKBAR ALIAS MD NAKBAR

HCAL 2820/2018

[2021] HKCFI 1760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2820 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 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 dated 10 December 2018 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Order dated 22 May 2020 (“the Court’s decision”), the Court dismissed his application for the reason that there was no reasonable prospect of success in his intended application.

4.  The applicant filed a summons dated 8 June 2020 applying for extension of time to appeal against the Court’s decision.  The file was misplaced and the application has not been dealt with within the usual time.

5.  In his affirmation in support of his application, he said that he was late because he received the court’s letter late.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

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.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board considered the applicant’s evidence and it rejected his evidence that he had been wrongly charged or detained in prison.  It did not accept that he faced a real chance of harm of any kind for any reason in Bangladesh in the reasonably foreseeable future [49 & 50].  The references in the brackets are those in the Board’s Decision.

9.  The Court had considered the applicant’s grounds for his application.  The applicant had also appeared before the Court.  Upon enquiry by the Court, the applicant confirmed that he had no complaint against the immigration officer or the Board.  Also, he had no comments on the Board’s findings.  It is obvious that the Board rejected all the significant facts in support of his claim.  As such, he has no factual basis for his application.

10.  The applicant has not been able to say in what respect had the Board erred in its Decision.

11.  In the circumstances, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against the Court’s decision.  I refuse to extend time for his appeal.  Accordingly, I dismiss his application.