RE MASUM MADBAR

CAMP 188/2018

[2019] HKCA 473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 188 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 762 OF 2017)

__________________________

RE:

MASUM MADBAR

Applicant

__________________________

Before: Hon Chu, Barma and Au JJA in Court

Date of Judgment: 15 July 2019

________________________

JUDGMENT

________________________

Hon Chu JA (giving the Judgment of the Court):

1.  On 15 May 2019, this Court (Chu and Barma JJA) handed down our judgment^[1] (“the Judgment”) refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 12 June 2018.

2.  On 16 May 2019, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite the directions of the Registrar of Civil Appeals, the applicant has not lodged any written submission to support his application. 

3.  Having considered the applicant’s notice of motion and affirmation, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of his notice of motion.

4.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.  The Notice of Motion gave the grounds of the appeal to be: (i) the judgment is unreasonable and unfair; (ii) the applicant did not complain about the poor performance of the duty lawyer due to fear that he would be picked out for “misappropriating” by the adjudicator; and (iii) the applicant genuinely did not have enough time to address the bundle.

6.  The applicant’s affirmation set out two grounds to support his application, namely, (i) the Court was wrong in law in holding there was no state acquiescence or involvement; and (ii) The Court failed to find out clear details of the current situation of Bangladesh. 

7.  The matters stated in the Notice of Motion and the affirmation do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal. 

8.  Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  Secondly, other than ground (i) in the affirmation, all the other grounds in the Notice of Motion and the applicant’s affirmation were not raised in the application to this Court for leave to appeal out of time.  The complaint about the performance of the duty lawyer was further not even argued before the Judge.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the application before it.[2]  Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]  Thirdly, for the reasons given in [16] of this Court’s judgment, ground (i) in the affirmation relating to state acquiescence is not arguable.           

9.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.

(Carlye Chu)	(Aarif Barma)	(Thomas Au)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The applicant, unrepresented, acted in person.

CAMP 188/2018

[2019] HKCA 473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 188 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 762 of 2017)

_____________________________

RE:

MASUM MADBAR

Applicant

_____________________________

Before:

Hon Chu and Barma JJA in Court

Date of Judgment:

15 May 2019

________________

JUDGMENT

________________

Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 12 June 2018 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by Deputy High Court Judge Bruno Chan (“DHCJ Chan”) on 16 November 2018.

2.  The applicant had filed an affirmation in support of his application.  Despite the directions given by the Registrar of Civil Appeals, he has not lodged any written submission.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 5 September 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 26 March 2015 and 26 May 2017 rejecting his non-refoulement claim.

5.  The applicant’s claim was set out in detail in the decisions of the Director and the Board, and was summarized by the Judge at [1] to [10] of the Form CALL-1 dated 12 June 2018, [2018] HKCFI 1253. 

6.  Briefly stated, the applicant is a Bangladeshi national.  He entered Hong Kong illegally and was arrested by the police on 26 July 2009.  On 28 July 2009, he raised a torture claim based on his fear of being harmed or killed by the supporters of the Awami League party (“AL”) because in 2008 he and other supporters of the Bangladesh Nationalist Party (“BNP”) threw bombs at the AL supporters during a political rally. Upon the commencement of the Unified Screening Mechanism, the applicant’s claim was assessed on all applicable grounds.

7.  By his two decisions, the Director rejected the applicant’s claim on all applicable grounds.  The first decision covered the torture risk[1], the BOR 3 risk[2], and the persecution risk[3] grounds, and the further decision dealt with the BOR 2 risk[4] ground.

8.  The applicant’s appeal to the Board was heard on 7 March 2016 and 11 August 2017.  For the reasons set out at [45] to [139] of its decision dated 5 September 2017, the Board dismissed the appeal.  In gist, the Board did not find the applicant’s case credible and did not accept he was targeted by the AL or was pursued by the Bangladesh police in connection with the bombing incident.  The Board concluded that the applicant failed to make out a case under any of the applicable grounds.

9.  On 12 October 2017, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  At his request, an oral hearing was held on 4 May 2018.  He appeared in person, having had his application for legal aid refused, and made oral submission to the Judge.  By the CALL-1 From dated 12 June 2018, the Judge refused to grant him leave to apply for judicial review. 

10.  The 14-day period[5] for the applicant to appeal the decision of the Judge expired on 26 June 2018.  On 16 October 2018, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  The summons was listed for hearing on 26 October 2018 before DHCJ Chan.  The applicant was absent at the hearing.  DHCJ Chan dismissed the application by his decision handed down on 16 November 2018. On 5 December 2018, the applicant filed a summons and an affirmation in this Court to renew his application for leave to appeal out of time.

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

12.  By the time the applicant filed the summons in the lower court for leave to appeal out of time, he was already late for more than three months.  The delay is serious.  In addition to providing a satisfactory explanation for the delay, the applicant is required to demonstrate that his intended appeal has good prospect of success, which is a crucial factor in determining whether the Court should exercise its discretion to grant an extension of time for appeal (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125, Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, Re Gurung Min Bahadur[2018] HKCA 226).   

13.  In the summons and affirmation filed in the court below, the applicant explained that he did not receive the decision and the order dismissing his application for leave to apply for judicial review.  He said he was still residing at the address he provided to the court, and he could not understand why he did not receive the court’s decision and order when he had on other occasions received letters sent by the court.  Nothing was said about the reasons for the delay in the summons and affirmation filed in this application.  We take it that the applicant is relying on the explanation he gave in the court below.  DHCJ Chan was not impressed with the applicant’s explanation for the delay.  We also find the explanation unsatisfactory.  However, what is more important is the prospect of the applicant’s intended appeal.

14.  The applicant relied on nine grounds in his application for leave to apply for judicial review, which the Judge summarised in [24] to [28] of the Form CALL-1.  The Judge gave careful consideration to the grounds and explained in [35] to [52] of the Form CALL-1 why they were unarguable.

15.  The applicant advanced two grounds of appeal in this application.  They are: (1) DHCJ Chan was wrong in law in holding there was no state acquiescence or involvement; and (2) DHCJ Chan failed to provide detailed reason for his decision.

16.  The two grounds are clearly unarguable.  In the first place, the decision that the applicant seeks leave to appeal out of time is the decision of the Judge which refused his application for leave to apply for judicial review. The decision of DHCJ Chan dated 16 November 2018 only relates to the application for leave to appeal out of time.  More importantly, other than making a mere assertion, the applicant has not provided any particulars to support his contention that the Judge was wrong in upholding the Board’s finding on the issue of state acquiescence. Thirdly, in light of the full reasons provided by the Judge, the complaint that he failed to give detailed reasons simply has no merit.  

17.  Given that the intended appeal is unarguable, it would be futile to give leave to appeal out of time. Accordingly, we dismiss the applicant’s summons filed on 5 December 2018.

18.  Since the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing. 

 
 

(Carlye Chu)	(Aarif Barma)
Justice of Appeal	Justice of Appeal

  

The applicant, unrepresented, acted in person.