RE PALASH BAKCHI

HCAL 920/2019

[2021] HKCFI 2690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 920 OF 2019

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D E C I S I O N

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1.  The applicant is from Bangladesh. He entered Hong Kong illegally from China on 23/3/2009. He was arrested by the police. He lodged a torture claim on 26/3/2009. It was rejected by the Director on 28/10/2011 and the TCAB on29/11/2011. Leave for judicial review was refused on 5/2/2013.[1]

2.  He lodged the non-refoulement claim [2] in this case on 8/10/2014.  The Director rejected his claim on 27/4/2017.  His appeal was dismissed by the TCAB on 4/3/2019.

3.  The applicant was the Organizational Secretary of the BNP [3] (youth wing) from 2001—2006.  He feared that the AL[4] members would harm or kill him if he returned to Bangladesh.  His family was devoted Hindu.  They had long standing grudges with the Muslim neighbourhood.

4.  In October 2006, his family was twice attacked by some AL members.  He was not injured but the police did not investigate.  He and his family fled to his uncle’s place for safety.  In early 2007, a senior AL leader, Khan, filed a report [5] to the police against him.  He did not know the reason behind.  The police did not contact him.  He decided to come to Hong Kong for protection.  He left Bangladesh in November 2007 to China.  The agent abandoned him in China.  He stayed in China for a year before sneaking into Hong Kong.  He worked at Kam Tin but was arrested by the police.

5.  In 2011, he learned from his brother that the Muslim villagers looted his house.  They proposed to pay a sum for his family to move to India.  He had since lost contact with his family.

6.  The TCAB found that the applicant was never injured up to a minimum level of severity.  He and his family were only supporters of the BNP.  There was no reason for the AL to persecute him after a lapse of 12 years.  The grudges from the neighborhood were not about politics.  The past events were mainly hearsay which was not of much weight.  The applicant had not applied for protection in China despite staying there for nearly a year.  There was reasonable State protection and relocation options.  The adjudicator concluded that there was no real risk of ill-treatment or persecution.

7.  The applicant filed the leave application on 4/4/2019 for judicial review.  In his affirmation, he pointed out that the adjudicator failed to appreciate his problem.

8.  A hearing was set on 24 November 2020 on the request of the applicant.  He was absent.  He did not file any additional evidence.  This court dealt with the leave application on paper.

9.  In substance, the adjudicator disbelieved the applicant.  He was not persuaded that the applicant would be subject to ill-treatment in future given the overall evidence.  This court agreed with the analysis of the adjudicator.

10.  This court found no error of law or procedure.  The decision was reasonable.  Leave was refused on 13/1/2021.

11.  The applicant filed a summons on 13/5/2021 for extension of time to appeal against the refusal of leave.  He was about 3½ months out of time.  In his affirmation, he said he ‘could not get time to appeal’.  However, in the summons, he said he ‘could not get any letter.’

12.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.[6]

13.  There was a substantial delay of 3½ months.  He asserted that he had not received the decision of this court.  He did not give any further explanation.

14.  The decision of this court was sent on 13/1/2021 to the same address as in the summons.  The notice of hearing was also sent to the same address.  There was no return of mail all along.

15.  This court has grave doubt about his explanation.  However, the merits of the intended judicial review is most important at this stage [7].

16.  The applicant’s evidence was rejected by the adjudicator.  There was no real risk of harm.  I agree with the decision the adjudicator.  The intended judicial review was of no merit.  

17.  In the circumstances, I refuse the application for extension of time to appeal.