Shab Uddin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1063/2019

[2023] HKCFI 563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1063 OF 2019

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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 by staying in Hong Kong without permission 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 Decisions (“the Board’s Decisions”), rejected his appeal and affirmed the Director’s Decisions.

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 Second Decision.

3.By Order dated 7 December 2022 (“the Court’s decision”), the Court dismissed his application for the reason that there is no reasonable prospect of success in his proposed judicial review.

4.The applicant filed a summons on 14 February 2023 applying for extension of time to appeal against the Court’s decision. 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 sent the Court’s decision to the applicant at his last known address and it was never returned from the Post Office.

Discussion

5.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.

6.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. The deadline for his appeal is 21 December 2022. The applicant is late for about 1 month and 3 weeks. I shall, nevertheless, consider the merits of his case.

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 applicant’s claim is that, if refouled, he would be harmed or killed by the members of Awami League (“AL”) due to his previous involvement with the Bangladesh Nationalist Party (“BNP”).

9.The applicant’s appeal on the Director’s first decision on Torture risk, BOR 3 risk and Persecution risk had been considered by the Board. The Board, by its First Decision (“the First Decision”) had dismissed his appeal. In the Board’s First Decision, the Board had assessed the applicant’s evidence in the hearing and found that the applicant had exaggerated his facts; that even on his own facts, he had never been physically assaulted or ill-treated by the man he called his main enemy; that state protection was available to him and that internal relocation was a viable option if there was any risk, if refouled.

10.This is the applicant’s appeal against the Director’s second decision (“the Board’s Second Decision”) on BOR 2 risk only. He was late to lodge his notice of appeal to the Board. The Board had considered the applicant’s case in its First Decision. By the Board’s Second Decision, the Board did not accept the applicant’s reasons for his delay and refused to extend time for him to file the notice of appeal.

11.The court had considered the applicant’s application for leave to apply for judicial review of the Board’s Second Decision and rejected his application, having considered the merits of his case, relying upon the decision of the Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

12.The applicant has raised no valid reason in his affirmation to show that he has any realistic prospect 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.