RE MD ATIAR RAHMAN

HCAL 2962/2018

[2021] HKCFI 2453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2962 OF 2018

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D E C I S I O N

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1.  The applicant is from Bangladesh. He came to Hong Kong illegally and was arrested about 2 weeks later on 11/5/2007. He filed a torture claim which was rejected by the Director on 28/7/2011. He did not report to the Director since 2/9/2011. He was subsequently arrested on 21/12/2013. He lodged the present non-refoulement claim on 26/12/2013.[1]

2.  He feared that he would be harmed or killed by Billal who was affiliated with the Awami League (“AL”).  He was a student member of the Bangladesh National Party (“BNP”).  He did not hold any post but attended rallies sometimes.

3.  About November 2006, his group had injured Billal’s nephew during a fight arising from a cricket match.  He was released after police investigation. Since then, Billal and his gang tried to locate him for revenge.  He was not at home on both occasions when they came to his home.  Worried about his safety, he left home and stayed in Dhaka for 6 months.  He then obtained a visa and took a flight to Shenzhen via Kunming on 22/4/2007.  He then sneaked into Hong Kong by boat.

4.  The Director rejected his claim on 12/1/2018.  The Director concluded that there was low risk of harm.  The applicant had never been located by Billal and his gang.  There was no physical injury inflicted.  He was safe in Dhaka.  It was a private dispute with no official involved.  The incident occurred more than 10 years ago.  It was only his speculation that he had to leave Bangladesh because of imminent danger.

5.  The TCAB rejected his appeal on 3/12/2018.  There were inconsistencies and confusions in his evidence during the hearing[2]. In particular, the adjudicator found that the applicant was only a low level member of the “BNP”.  He was safe in Dhaka.  He could leave Bangladesh smoothly through official channel.  The incident occurred about 12 years ago.  He had not contacted his family for over 10 years.  There were reasonable relocation options.  The adjudicator opined that he exaggerated and fabricated some facts to strengthen his claim.

6.  On 24/12/2018, the applicant applied for leave for judicial review of both decisions.  This court was satisfied that there was no error of law or procedure.  The decisions of the Director and the TCAB were reasonable.  Leave was refused on 4/12/2020.

7.  The applicant filed a summons for extension of time to appeal on 4/1/2021.  By that time, he was about 17 days out of time.  In his affirmation in support of the application, he submitted that he had not received the decision of this court within 14 days.  He should be given an opportunity to present his case.

8.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.[3]

9.  The applicant is out of time for about 17 days.  It is quite substantial. He did not specify the exact day he received the decision and the possible reason for the failure in the mail.  Nor did he explain the reason for the further delay.  

10.  All along, this court used the same address as written on the summons filed for the extension of time.  The decision of this court was sent to the same address on 4/12/2020.  There was no return of mail.

11.  I have grave doubt about the reasons given.  The paramount importance however is the merits of the intended judicial review [4].

12.  I agree with the decisions of the Director and the adjudicator.  His evidence was not credible.  The applicant failed to point out any error in the judgment. The intended judicial review was of no merit.  

13.  In the circumstances, I refuse the application for extension of time to appeal.