RE SIKDER IBRAHIM

HCAL 939/2018

[2019] HKCFI 1436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 939 OF 2018

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D E C I S I O N

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The application

1.  This is the applicant’s application for extension of time for his appeal against my decision by way of Form Call-1 dated 8 February 2019 (“the Court’s Decision”), by which I refused to grant him leave to apply for judicial review of the Torture Claims Appeal Board’s Decision dated 18 April 2018.

2.  Having considered the applicant’s affirmation in support of his application, I refuse to grant him extension of time for his intended appeal. I shall state my reasons below.

The application for leave to apply for judicial review

3.  The applicant applies for leave to apply for judicial review of the Decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”), with the Director of Immigration (“the Director”) as the interested party.

4.  The applicant is a national of Bangladesh.  He came to Hong Kong illegally on 26 December 2013.  He was arrested by police on 7 February 2014.  On 8 February 2014 he was transferred to the Immigration Department for investigation. On 9 February 2014, he lodged a non‑refoulement claim by way of written signification.  He went through the unified screening process.

The Director’s Decision

5.  The Director had considered the applicant’s application by reference to the risks below:

a.   risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.   Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”).;

c.   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”)

6.  By Notice of Decision dated 29 March 2017 (“the Director’s Decision”), the Director rejected his application for non-refoulement for the reason that his claim was unsubstantiated.

The Board’s Decision

7.  He appealed to the Board and attended a hearing on 5 March 2018.

8.  By its Decision dated 18 April 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

Application for leave to judicial review

9.  By Form 86 under Order 53, rule 3(2) of the Rules of the High Court dated 25 May 2018, the applicant applied for leave for judicial review of the Board’s Decision, with the Director as the interested party.

10.  Having considered the application, I dismissed his application. I have stated my reasons in the Court’s Decision.

Discussion

11.  In the applicant’s affirmation, he said that he was advised by his friend to take out this application. He also said that he had good grounds of appeal, which he did not disclose at the stage of applying for leave to apply for judicial review.  He did not specify those grounds in his affirmation.

12.  In his opinion, the Director and the Board had made wrong assessment of his claim.  He suggested them go to his country to have inspection.  But this is unnecessary and in my view, will not assist the application’s claim.

13.  In considering whether time should be extended for the applicant to appeal against my decision, the Court will have regard to: (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: Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 4 December 2018 at §10.

14.  The applicant simply has no prospect of success in his intended appeal.  I refuse to extend time for his intended appeal and I dismiss his application.