RE HOSSAIN MD SAZZAD

HCAL 1239/2021

[2022] HKCFI 1666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO　1239 OF 2021

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D E C I S I O N

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The application

1.  This is an application for extension of time to apply for leave to appeal against the Court’s decision dated 15 October 2021 (“the Court’s decision”) rejecting the applicant’s application for judicial review of the Director’s Decision dated 20 July 2021 (the “Director’s Decision”), which rejected his application for a subsequent claim of HCAL 706 of 2018 (the “previous claim”). The Court had also imposed a Restrictive Proceedings Order (“RPO”) on him, prohibiting him from making further application or continuing with any existing proceedings without leave of the Court.

2.  The deadline for the applicant to appeal against the Court’s decision is on 29 October 2021. The applicant first made his application for leave to start fresh proceedings in the High Court. His application was refused. The applicant then on 14 January 2022 lodged his notice of appeal dated 10 January 2022. His application is therefore late.

The procedural history

3.  The applicant is an illegal immigrant from Bangladesh. He raised non-refoulement claim with the Immigration Department by written representation on 12 July 2014 on the grounds of Torture risk under the Ordinance; the BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance, the Persecution risk under the Refugee Convention.

4.  His claim was rejected by the Director by a Notice of Decision dated 24 March 2017.

5.  He appealed to the Torture Claim Appeal Board (the “Board”). By its Decision dated 12 April 2018 (the “Board’s Decision”), the Board rejected his appeal.

6.  He applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 21 February 2019 (the “Court’s Order”).

7.  He appealed against the Court’s Order to the Court of Appeal and his application was dismissed by the Court of Appeal on 17 June 2019.

8.  His Notice of Motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 7 November 2019.

9.  His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 16 March 2021.

10.  He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 19 March 2021.

11.  By the Director’s Decision, the Director refused his application.

Application for appeal of the Court’s decision out of time

12.  The delay is about 2 months, which is significant.

13.  The Court shall, nevertheless, 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. I shall first consider the merits of the case.

14.  In Re Adumekwe Rowland Ejike [2019] HKCA 702 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].”

15.  In his written submissions he has raised the following relevant grounds in support of his application:

(1)  he has life threat; and

(2)  his previous claim and current claim are totally different because his previous claim was torture to himself and his present claim is torture to his family for his absence.

16.  A hearing was fixed for the applicant to clarify his positions before the Court. Before me, the applicant said that he did not want to pursue his application further. He understood that he would not be allowed to make further application to court.

17.  Accordingly, I dismiss the applicant’s application.