RE ISLAM SHEIKH NAZRUL

HCAL 936/2019

[2022] HKCFI 2222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 936 OF 2019

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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 by remaining in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, 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 Decision.

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 8 June 2022 (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. The deadline for his to file his notice of appeal is within 14 days after the Court’s decision[1].

4.  The applicant filed a summons on 30 June for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said he did not receive the Court’s decision within 14 days and he should be given a chance to appeal. According to the Court’s record, the Court’s decision was sent to the applicant’s last known address. In any event, the Court will consider the merits of his case.

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 Awami League (“AL”) because of his involvement in Jubodal, the young wing of Bangladesh Nationalist Party (“BNP”).

10.  The Director found that his claim was not substantiated. He appealed to the Board.

11.  The Board observed that the claimed threats and alleged attacks from the AL members were acts of terrorism without having a target at anyone in particular. There was no evidence that the AL targeted the applicant personally [57]. Also, on the alleged incidents, the AL members were acting in their personal and private capacities without state involvement [75]. Meanwhile, there was no evidence that the AL members looked for the applicant outside his home area [58]. The applicant was also able to travel in and out of Bangladesh freely and his evidence that the BNP members were killed internationally was based on hearsay information [59]-[61]. The Board also refused to place weight on the hearsay evidence from the applicant’s wife and mother and it found that the applicant’s immigration record was inconsistent with someone who genuinely sought protection [62]-[63]. The Board further found that, based on the country of origin information, state protection and internal relocation were both available to the applicant [64]-[68]. In addition, the inconsistencies of the applicant’s evidence rendered him an unreliable witness [69]-[70]. The references refer to the Board’s Decision.

12.  The applicant has no 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 his to appeal and I dismiss his application.