RE ASLAM HOSSAIN

HCAL 1605/2019

[2022] HKCFI 817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1605 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 27/4/2007. He was arrested on 21/4/2008 for illegal remaining and using another’s identity card. He lodged the non-refoulement claim in this case on 19/9/2008.

2.  The basis of his claim was that he might be harmed or killed by his brother who had a land dispute with him.

3.  In 2005, his father made a will leaving all properties to the applicant. His brother was not happy about this. In mid-2005, he refused to pay his brother 500,000 Taka. His brother demanded that as a surety to ensure sharing of the interest in the land. His brother was emotionally disturbed. He and his father had to leave home. He moved away to his in-laws in another district. Subsequently, he was harassed by anonymous calls and attacked by some unknown people. He did not feel safe and finally left Bangladesh for Hong Kong on 4/4/2007. His family informed him in 2014 that his brother continued to ask about him.

4.  The Director rejected his claim on 21/5/2015.  The appeal to TCAB was dismissed on 12/5/2017.

5.  The adjudicator found that the applicant was not truthful. There was no real risk of harm. He confirmed that his brother was physically fit and not emotionally disturbed. This contradicted his reason for leaving home in 2005. He was inconsistent whether he had closed his business before leaving home. He did not mention that his brother had instigated an attack on him. The adjudicator found this unacceptable as that attack triggered his decision to leave Bangladesh. The applicant had no interest to discuss with his father to restore the inheritance of his brother in order to resolve the hostility.

6.  On 13/6/2019, the applicant applied for leave for judicial review of the decision of the TCAB.  He was nearly 2 years out of time.

7.  In considering whether there is good reason for the delay, I had considered the length of the delay, the reason for the delay and the merits of the leave application. [1]

8.  The address in the record of the TCAB was slightly different from that in the Form 86. However, the applicant did attend the TCAB hearing in 2016. This showed that the address in the record of the TCAB was correct. Had there been any problem with the address, the applicant must bear the consequences of any failure in the mail. I did not accept the applicant’s explanation that he had not received the TCAB decision.  I did not accept that he only knew about it when informed by the Immigration Department.  There is no merit in the intended judicial review given the evidence.  There is no error of law and procedure.  The decision of the TCAB is reasonable. I refused to extend time for the leave application and refuse leave for the intended judicial review on 13/1/2021.

9.  The applicant filed a summons on 28/1/2021 for extension of time to appeal.  He was out of time for 1 day.

10.  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.[2]

11.  Despite that the delay is only 1 day, the merits of the intended judicial review are important at this stage.

12.  As set out in paragraphs 5 above, there is no merit in the intended judicial review. Having considered all factors, I refuse the application for extension of time to appeal.