Re Md Mijanur Rahman

HCAL 2313/2018

[2022] HKCFI 2706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2313 OF 2018

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

Date of Decision: 13 September 2022

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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 for staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected his application and she 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 Form CALL-1 dated 9 June 2022 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review.

4.The applicant filed a summons on 4 August 2022 for appeal against the Court’s decision out of time. In his affirmation in support of his application, he said he did not receive the Court’s decision within 14 days. According to the court’s record, the Court’s decision was sent to his last known address on 9 June 2022.

Discussion

5.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.

6.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].”

7.I shall therefore consider the merits of his case. The applicant claimed that, if refouled, he would be harmed or killed by the Awami League (“AL”).

8.By way of the Director’s Decision, the Director refused the applicant’s claim for the reason that his claim was not substantiated. The applicant appealed to the Board.

9.Having considered the evidence and sought clarifications from the applicant, the Board made the following findings. Firstly, the applicant was only a low ranking member within the BNP. Secondly, on his own evidence, he did not sustain severe injuries during the alleged incidents [21]. Thirdly, he was not a personal target of the AL and the death threats were simply hearsay. Fourthly, state protection was available to him [25]-[27]. Fifthly, his claimed enemies did not hold powerful positions in the AL and there was no evidence that they could locate him everywhere in Bangladesh. Thus, internal relocation was also available [45]-[49]. The references refer to the Board’s Decision.

10.It is clear that the Board dismissed his appeal with the reasons above. In the applicant’s affirmation in support of his application for extension of time to appeal, he had not set out any reason to show that he has any reasonable prospect of success in his intended appeal.

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

The applicant was unrepresented.