RE ISLAM MD RAFIQUL

HCAL 443/2017

[2020] HKCFI 1647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 443 OF 2017

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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 dated 18 July 2017 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s decisions.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court, the applicant filed Form No 86 to apply for leave to apply for judicial review of the Board’s Decision.  He had appeared before the Court.  By Order dated 23 April 2018 (“the Court’s decision”), the Court refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review. 

3.  The applicant intends to appeal to the Court of Appeal against the Court’s decision.  However, he is out of time under Order 53, rule 3(4) of the Rules of the High Court.  He filed a summons on 11 May 2020 for extension of time for his appeal.

4.  He set out his grounds in support of this application as follows:

(1) his reason for the delay is that he did not receive the court’s decision as he was being detained in prison;

(2) the Court’s decision was unfair and unreasonable and he had good grounds of appeal, which he considered not necessary to disclose at this stage;

(3) he would be in danger if he returned to Bangladesh and the Board had not made proper inquiry into his situation; and

(4) the Adjudicator should go to Bangladesh to understand his situation.

Discussion

5.  In Re Adumekwe Rowland Ejike [2019] HKCA 702 §19, the Court of Appeal held that in order to determine whether time should be extended for the applicant to appeal the Court’s decision refusing leave to apply for judicial review to the Court of Appeal, the prospect of success of the intended appeal is important and the court will not grant extension of time for a hopeless appeal to be pursued.

6.  The Court had in its decision, set out the reasons why it refused to grant leave to the applicant to apply for judicial review of the Board’s Decision.

7.  It is quite obvious that the Board rejected his appeal because, after considering his evidence, the Board agreed with the Director and it concluded that he had not made out a case for non-refoulement protection.  The Court had considered the Board’s Decision and found that it was without fault [10].

8.  Ground (2) is not acceptable as this Court has to consider his reasons for his application.

9.  Ground (3) is his opinions without any evidence in support of them.

10.  Ground (4) is also his opinion, which I do not agree as the burden is on the applicant to prove his case and it is not practicable for the Adjudicator to go to the country involved to make investigation for every case of non-refoulement application.  The facts in this case do not warrant such special investigation.

11.  In the circumstances, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against the Court’s decision.  I refuse to extend time for his appeal.  Accordingly, I dismiss his application.