RE MIR SHAJJAT

HCAL 2703/2018

[2022] HKCFI 629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2703 OF 2018 

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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, 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 22 November 2021 (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 10 February 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said that he did not get the Court’s letter.  However, the Court’s letter was sent to his last known address without being returned.

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. The delay of 2 months and 4 days is significant. Nevertheless, 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 endangered by Chand and the People of Awami League (“AL”) because he was a member of the Bangladesh Nationalist Party (“BNP”). He claimed that he would also be harmed or killed by his creditors who belonged to AL due to his default in the loan repayment.

10.  The Director found that the Director refused his claim on the grounds for the reason that his claim was not substantiated. He appealed to the Board.

11.  The Board rejected his appeal and affirmed the Director’s Decision for the reasons that it did not accept the facts in support of the applicant’s claim

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.