RE SHAHAZADA ARMAN

HCAL 1108/2019

[2023] HKCFI 194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1108 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 by staying in Hong Kong without permission 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 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 6 September 2022 (“the Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant applied for an extension of time to appeal the Court’s decision to the Court of Appeal. According to the record, the Court’s decision was returned by the Post Office and was not re-sent to the applicant. The Court, by Decision dated 10 November 2022 (“the Court’s Decision”) extended time of 14 days from 10 November 2022 for the applicant to file his notice of appeal.

5.  However, the applicant has failed to do so.

6.  The applicant filed a summons on 28 December 2022 applying for another extension of time to appeal against the Court’s decision. In his affirmation in support of his application, he asked the Court to extend another 14 days for him to appeal because he did not get the letter. He further said that since he did not work, his body has become lazy, inactive and sick. According to the record, the Court’s Decision, the Court’s Decision was sent to the last known address of the applicant.

Discussion

7.  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.

8.  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 his appeal is 24 November 2022. The applicant is late for about one month. I shall consider the merits of his case.

9.  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].”

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

11.  The Director refused his application because his claim was unsubstantiated. He appealed to the Board.

12.  Having considered all the evidence, the Board did not accept his evidence on the facts of the case.

13.  The applicant has not explained why he did not receive the Court’s letter, which is deemed to have delivered to the applicant^[1].

14.  The applicant has raised no valid reason to show that he has a realistic prospect of success in his intended appeal.

15.  In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.