RE AKON MONIR

HCAL 1797/2018

[2021] HKCFI 2125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1797 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, 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 (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 16 September 2019 (the “Court’s decision”), the Court 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 6 February 2020 applying for extension of time to appeal against the Court’s decision and for leave to advance new ground of appeal.  The file was misplaced and the application was therefore unable to be dealt with within the usual time.

5.  In his affirmation in support of his application, he said that the Court’s decision was unfair, without giving him an opportunity to clarify his case and situation in his country.  He was not aware of the time limit of 14 days and he did not receive the Court’s decision as he was being detained in the Correctional Services Department.

Discussion

6.  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.

7.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (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.

8.  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].”

9.  The Board considered the applicant’s case and found that the applicant was not a reliable witness as in material aspects of the case, the information or evidence given by the applicant was not truthful [42].  The Board further said “This Board cannot base on such information/evidence to reach a decision in his favour.  Therefore, his appeal is dismissed.”

10.  The Board had also taken a fallback position.  It said that if the information were accepted, it would still dismiss his claim because it found that his enemy did not have the resources to locate him all over Bangladesh and his fear of ill-treatment was unlikely to materialize [49]; that state protection was available to him [50]; that internal relocation was available to him [53]; that his allegation of torture fell outside the statutory definition of section 37U (1) of the Ordinance [61]; that he did not face a genuine risk of being subjected to BOR 3 risk [66]; that his dispute with his enemy was a private matter, therefore not within the protection against Persecution risk under Refugee Convention [70] and finally there was no evidence to show that he was subject to the BOR 2 risk [74].

11.  The applicant is unable to show that he has any reasonable prospect of success in his intended appeal.

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