Re Dalowar Mohammad

HCAL 938/2021

[2022] HKCFI 954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 938 OF 2021

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

Date of Hearing:  28 February 2022

Date of Decision:  13 April 2022

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D E C I S I O N

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The application

1.This is an application for extension of time to apply for leave to appeal against the Court’s decision dated 6 August 2021 (“the Court’s decision”) rejecting the applicant’s application for judicial review of the Director’s Decision dated 27 May 2021 (the “Director’s Decision”), which rejected his application for a subsequent claim of HCAL 533 of 2017 (the “previous claim”). The Court had also imposed a Restrictive Proceedings Order (“RPO”) on him, prohibiting him from making further application or continuing with any existing proceedings without leave of the Court.

2.The deadline for the applicant to file his file his appeal against the Court’s decision is on 20 August 2021. The applicant’s letter dated 29 September 2021 to raise the appeal is therefore out of time for 39 days.

The procedural history

3.The applicant is an illegal immigrant from Bangladesh. He raised non-refoulement claim with the Immigration Department on 27 December 2013 on the grounds of Torture risk under secion 37U (1) of the Ordinance, BOR 2 risk, Right to Life under Article 2 of the Bills of Right Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

4.By the Director’s Decision dated 5 January 2016 and the Director’s Further Decision dated 26 June 2017, the Director rejected his claim on all the risks and he appealed to the Torture Claims Appeal Board. His appeal was dismissed by the Board’s Decision dated 21 July 2017 (the “Board’s Decision”).

5.He applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 25 June 2018 (the “Court’s Order”).

6.His appeal against the Court’s Order to the Court of Appeal was dismissed on 29 October 2018.

7.His motion of appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 14 January 2019.

8.His application for leave to appeal against the decision of the Court of Appeal was dismissed by the Court of Final Appeal on 20 May 2020.

9.He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 28 May 2020.

10.By the Director’s Decision, the Director refused his application.

11.By the Court’s decision, this Court rejected his application for judicial review of the Director’s Decision for the reason that he relied upon the similar facts in support of his previous claim for his subsequent claim, which amouts to an abuse of the court’s process. This Court therefore imposed RPO on him.

Application for appeal of the Court’s decision out of time

12.The delay is significant.

13.The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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. I shall first consider the merits of the case.

14.In Re Adumekwe Rowland Ejike [2019] HKCA 702 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].”

15.In his letter dated 29 September 2021, he set out his grounds in support of this application, which are summarized below.

(1)  The Deputy Judge had failed to carry out sufficient research and inquiry into the updated Country of Origin Information (“COI”).

(2)  COVID 19 is very serious in Bangladesh and he does not want to go back.

16.A hearing was fixed for the applicant to clarify his positions before the Court on 28 February 2022.

17.Before me, the applicant said other than what he had said in his affirmation above, he said that he had been detained by the Immigration Department for two and a half months and he wanted bail.

18.The above ground does not consititute valid reasons for his delay or for his intended appeal against the Court’s decision because they do not change the fact that he relies upon the facts in support of his previous claim for his subsequent claim, which is an abuse of the court’s proceedings.

19.In the circumstances, I find that there is no realistic prospect in the applicant’s intended appeal against the Court’s order. Accordingly, I dismiss the applicant’s application.

The applicant appeared in person.