Re Islam Majharul

HCAL 1142/2018

[2020] HKCFI 1176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1142 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 rejected his application and he appealed to the Torture Claims Appeal Board/Non-Refoulement claims Petition Office (“the Board”). Having considered his evidence, the Board, by its Decision dated 4 June 2018 (“the Board’s Decision”), rejected his appeal and confirmed 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. He had appeared before this Court. By Order dated 8 August 2019 (“the Court’s decision”), I refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

3.The applicant intends to appeal to the Court of Appeal against the Court’s decision. However, he is out of time under Order 53, rule 3(4), RHC. The deadline for him to appeal should be 22 August 2019. He took out a summons dated 26 August 2019 for time extension for his appeal.

4.A hearing was fixed for him to attend court for his application on 13 November 2019 and he attended the hearing.

The applicant’s affirmation

5.The applicant filed an affirmation in support of his application. In his affirmation he relied upon the grounds below.

6.The Court’s decision was unfair without allowing him an opportunity to clarify his situation in his country.

7.The Court’s decision heavily relied upon the Country of Origin Information provided by the Director of Immigration.

8.He was unrepresented, he was not notified that he only had 14 days to appeal.

Discussion

9.Ground (1) is simply not true. He was at liberty to say whatever he wanted to say at the hearing before me. Ground (2) is also not true. I did not have to find the facts of the case. I did not rely upon the Country of Origin Information. Ground (3) does not assist him as the law does not impose the duty upon the Court to notify him the time limit for his appeal. This is already provided in the Rules of the High Court.

10.The Court of Appeal in Re Adumekwe Rowland Ejike [2019] HKCA 702 28 June 2019 held

“19. The prospect of success of the intended appeal is important; the court will not grant extension of time for a hopeless appeal to be pursued.”

11.I asked him if he could state what error I had committed in coming to my decision. He said that there was nothing wrong about my decision. But he had a life threat if he was refouled.

12.In the circumstances, I find that the applicant is unable to show that he has a reasonable prospect of success in his intended appeal against my decision. Accordingly, I dismiss his application.

The Applicant appeared in person.