RE MD JAHANGIR HOSSAIN

HCAL 650/2019

[2022] HKCFI 3115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 650 OF 2019

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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 for staying in Hong Kong without permission 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, 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 Form CALL-1 dated 19 August 2022 (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 against the Board’s Decision.

4.  The applicant filed a summons on 28 September 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he does not agree with the Court’s decision without explaining why he is late.

Discussion

5.  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.

6.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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. The deadline for appeal is on 2 September 2022. The delay is 26 days. The application can be dismissed as he has given no reason for his delay. Nevertheless, I shall consider the merits of the case.

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.  The applicant claimed that, if refouled, he would be harmed or killed by members of Bangladesh Nationalist Party (“BNP”) and the Bangladesh police officers.

9.  By way of the Director’s Decision, the Director refused the applicant’s claim for the reason that his claim was not substantiated. He appealed to the Board.

10.  Having considered all the evidence and the parties’ submissions, the Board made the following findings. The Board found that the core aspect of his claim was doubtful and lacked credibility [91]. On his own evidence, the applicant conceded that most of his assertions were based on hearsay information [92]-[96]. The Board also considered the documents submitted by the applicant to be questionable, which further damaged his credibility [97]-[101]. As a result, the Board refused to attach any credence to his version of past events. The references refer to the Board’s Decision.

11.  There is no valid reason from the applicant to show that there is any realistic prospect of success in his intended appeal.

12.  In the circumstances, I refuse to extend time for the applicant to file his notice of appeal. Accordingly, I dismiss his application.