RE SHAHAJUL MOLLAH

HCAL 1747/2018

[2022] HKCFI 1513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1747 OF 2018

_____________

_____________

_______________

D E C I S I O N

_______________

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 Form CALL-1 dated 16 September 2019 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review.

4.  The applicant filed a summons on 21 April 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said that the Court’s decision was unfair as he wasn’t given an opportunity to clarify his case and situation in his country. He was unrepresented and he did not know the time limit for appeal.

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. I shall consider the merits of the case.

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 applicant claimed that if refouled, he would be harmed or killed by the members of Awami League (“AL”) and arrested by the police as AL had frame up five cases against him.

10.  The Director rejected his claim for the reason that the alleged risks were not substantiated. He appealed to the Board.

11.  The Board considered the applicant’s case and found that it accepted part of the stories as alleged by the applicant and reject other part of his stories. It accepted that he was convicted one criminal charge and was being investigated in two criminal charges in Bangladesh. It did not accept that he was targeted by AL members due to his political affiliation with BNP; that he would face lengthy imprisonment sentence if he is refouled to Bangladesh and that he would not have a fair trial in Bangladesh. Based upon the above finding of the facts, the Board found that he failed to establish torture within the context of section 37U of the Ordinance; BOR 3 risk and BOR 2 risk and Persecution risk under RC. Finally, the Board also found that if it was wrong to make the finding of facts in relation to the above risks, the applicant still had the option of internal relocation.

12.  The applicant is unable to set out any valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of this Court in the assessment of his application.

13.  There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for him to appeal and dismiss his application.