Re S M Shahabuddin

HCAL 2892/2018

[2021] HKCFI 1777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2892 OF 2018

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Before:  Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:  2 July 2021

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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 (“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 Order dated 2 June 2020 (“the Court’s decision”), the Court dismissed his application for the reason that there was no reasonable prospect of success in his intended application.

4.The applicant filed a summons dated 22 June 2020 applying for extension of time to appeal against the Court’s decision.  The file was misplaced and the application has not been dealt with within the usual time.

5.In his affirmation in support of his application, he applied for leave to appeal out of time for the reasons that the court’s letter was late; that he had to seek his friend’s advice on the legal procedures; that he had to leave Bangladesh knowing that he had no future in Hong Kong; that he had no other place for his safety; that there are good grounds for his appeal, which he prefers to adduce at the Court of Appeal; that he is a genuine asylum seeker and he is lucky to be able to leave his country and settle in Hong Kong and that the adjudicator is ignorant of the situation in Bangladesh and he is invited to go to Bangladesh to see it for himself.

Discussion

6.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

7.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].”

8.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision came to the conclusion below; the references are those in the Board’s Decision.

“45. Looking at all of these matters in the round, in particular the appellant’s poor oral evidence, the fact that he provides no support for his mere assertions when such support should be readily available, and his behavior since 2006, I conclude no credence whatsoever can be attached to any of the appellant’s claims.

46. There appears to be no dispute the appellant is a national of Bangladesh, but beyond that I can make no positive findings of fact.”

9.The Adjudicator came to the above conclusion having considered the evidence below.

(1)  The applicant’s account of the events was extremely vague, with numerous lacunae, which he took no steps to fill [29].

(2)  He said that there were arrest warrants against him, but he travelled in and out of Bangladesh on four separate occasions, passing through the immigration control on no fewer than seven occasions [30&31].

(3)  He did not make any claim for international protection during his first three visits in Hong Kong.  He did so only after he was arrested for immigration offences [32].

(4)  His other evidence and his behavior only negatively contributed to the Adjudicator’s conclusions in relation to his credibility [33].

(5)  He said that he was committed to AL’s political work, but he knew almost nothing about AL.  He could not make a difference between AL and BNP [34].

(6)  He was unable to give details to his account of activities, he said he undertook for the party [45].

(7)  He said that he took part in the 2004 rally where grenades were thrown, but he was unable to give any real description of the event [36].

(8)  It is not logical to consider that the AL party would target him, the AL being the ruling party now [37].

(9)  He could not give evidence to support that he was falsely accused of the grenade attack [38].

(10)  He was unable to explain why he had not arranged for the evidence in support of his claim [39].

(11)  The document he produced to show that he had been expelled from AL was not accepted because he was unable to tell the Adjudicator how he got it [41].

10.The applicant had attended before me and confirmed that he had had a fair interview with the immigration officer and a fair hearing before the adjudicator.

11.The applicant has not been able to say in what respect had the Board erred in its Decision.  The Board had rejected his evidence on the facts of his claim.

12.His grounds in support of this application are not valid grounds to show that he has any reasonable chance of success in his intended appeal.

13.In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.

The applicant was unrepresented.