Re Hosain Shahin

HCAL 823/2019

[2021] HKCFI 2449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 823 OF 2019

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

Date of Decision: 2 September 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, 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 Order dated 1 June 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.The applicant filed a summons dated 5 August 2021 applying for extension of time to appeal against the Court’s decision.

5.In his affirmation in support of his application, he said that the did not receive the Court’s order within 14 days.

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.

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.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that the Board, having considered his evidence, found that his fear was genuine.  But given that he has no personal political profile associated with the Bangladesh Nationalist Party and that after his relocation to Mirpur he was no longer targeted for harm by the Awami League people, the Board considered that there is only a remote or speculative risk and not a real risk of harm from the Awami League people if he returned to Bangladesh.  The Court, having examined the Board’s decision, agreed that the Board did satisfy the enhanced Wednesbury test and its Decision was without fault.

10.The applicant has not raised any issue that the Board was in error in arriving at its Decision or the Court was in error, and he is therefore unable to show that he has any reasonable prospect of success in his intended appeal.

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

The applicant was unrepresented.