Bepary Mohammad Arshed v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 171/2017

[2019] HKCFI 2325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 171 OF 2017

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D E C I S I O N

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1.This is an application for an extension of time to appeal against my decision of 26 January 2018 refusing this applicant leave to apply for judicial review. The applicant may appeal as of right but has to observe the time limits to appeal an interlocutory order. Pursuant to Order 53 rule 3(4), the applicant had 14 days in which to apply to the Court of Appeal. He failed to do so. He now requires and seeks leave to extend time to appeal against that order. There has been over a 17-month delay. This application is dated 5 August 2019 and is supported by an affirmation.

2.The applicant filed a Form 86, a notice of application for leave to apply for judicial review on 2 May 2017.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 25 April 2017.  The adjudicator of the TCAB rejected the applicant’s non-refoulement protection claim.  He found the applicant did not face a real risk of torture if he returned to Bangladesh nor did he face a BOR 3 risk, persecution risk or a torture risk.  The adjudicator gave full reasons in his decision why he reached those conclusions.

3.The basis of the applicant claim was that if he were to be refouled to Bangladesh he would be harmed or even killed by the Awami League (“AL”) because he was a supporter of the Bangladesh National Party (“BNP”).  The adjudicator accepted that there were hostilities between the supporters of these political parties.  During the political climate in 2012, according to the Country of Origin material the adjudicator considered, it was possible that the applicant may have been caught up in violence that erupted during political rallies.  However, he found the applicant was just a supporter and nobody of any rank or importance in the party, therefore, highly unlikely to be an actual target if he returned.  He also considered internal relocation and found that the applicant could reasonably relocate within Bangladesh without undue hardship.

4.The applicant entered Hong Kong illegally on 8 November 2013 and was arrested on the same day.  I have set out the background the applicant’s claim in my decision to refuse leave.  In his affirmation to support this application, the applicant said he did not receive my order of 26 January 2018 “on time”.  However, he does not state when he received my order.  Instead of filing a notice of appeal or applying for an extension of time appeal my order, the applicant instead filed another Form 86, he applied for leave to apply for judicial review again.

5.In HCAL 44/2018, a decision of Deputy High Court Judge Bruno Chan dated 26 July 2019, it is confirmed that this applicant filed a 2^nd application for leave to apply for judicial review before my decision dated 26 January 2018.  He told the judge in those proceedings that he duplicated his application because he thought he would have a better chance of success.  He did not wait for my decision before attempting to relitigate his case with a 2^nd application which is a clear abuse of the court process resulting in much judicial and public resources being wasted in processing his duplicate applications.

6.He has explained that his friends advised him to relitigate and only after the decision in HCAL 44/2018 did he seek legal advice and understand the proper process was to appeal my decision.  During this application he submitted that he did not know he should appeal within 14 days of my decision.  This is at odds with his decision to duplicate the leave to apply for judicial review before my decision was made known to him.

7.The delay in filing a notice of appeal are substantial, 17 months.  His explanation that he was unaware of the law and time limits imposed to appeal is no excuse, ignorance of the law is no excuse.

8.In any event, I find there is no merit nor any real prospect of success in the intended appeal.  It is not discourse duty to reconsider an applicant’s claim but to consider whether the adjudicator of the TCAB made an error of law or whether there is evidence of procedural unfairness or a failure to adhere to a high standard of fairness.  The applicant’s only ground is that the problems at home still existed.

9.Having considered the length of delay and the lack of merit in this application, it would not be in the interests of justice to grant an extension of time.  The applicant’s summons dated 5 August 2019 is dismissed.

The applicant appeared in person.