RE MD DELWAR

HCAL 1308/2018

[2021] HKCFI 1940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1308 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 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.  His application was out of time.

3.  By Order dated 25 March 2021 (“the Court’s decision”), the Court refused to extend time for him to apply for leave to apply for judicial review and 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 2021 applying for extension of time to appeal against the Court’s decision and for leave to advance new ground of appeal.

5.  In his affirmation in support of his application, he applied for leave to appeal out of time for the reasons that the Court’s decision was unfair; that he was being detained by the Correctional Services Department; that he was not aware of the time limit for his appeal and that he should be given a chance to explain.

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.  The Board considered the applicant’s case.  It held the facts below; the references are those in the Board’s Decision.

(1) The Board considered the future risks that the applicant might face and found that future risk of harm from the AL was not substantiated. [35]

(2) The evidence and the country of origin information showed that his life would not be seriously jeopardized if he returned to Bangladesh. [36]

(3) The applicant failed to displace that state protection would be available to him. [37]

9.  I note that in the Board’s Decision, it seems that the Board had not assessed each of the risks individually.  It only mentioned the Persecution risk.  In its conclusion, it affirmed the decisions of the Director’s Decision and the Director’s Further Decision.

10.  I bear in mind that the applicant is unrepresented and it would be difficult for him to identify the technical issue of the Board’s Decision that the risks were not separately and individually assessed.  In Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director of Immigration [2018] HKCFI 2726 §12, the Court held that the adjudicator was entitled to re-examine the evidence in relation to the facts under section 18 of Schedule of the Immigration Ordinance, Cap. 115.  In fact, he is under a duty to do so.  The Board is therefore entitled to rely upon the facts found by the Director in the Director’s Decision and the Director’s Further Decision.  Having done so, it is entitled to affirm the Director’s Decision and the Director’s Further Decision.  The Director had assessed his case in respect of each of the risks separately and individually.

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

12.  He has not been able to show that he has any reasonable chance of success in his intended appeal.

13.  In the circumstances, I refuse to extend time for his appeal.  I also refuse to grant him leave to advance new ground for his appeal.  Accordingly, I dismiss his application.