RE ALAM MOHAMMAD MASUD

CAMP 130/2019

[2020] HKCA 130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 130 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1151 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Leave to appeal to the Court of Final Appeal

1.1  On 23 October 2019, this Court (Cheung JA and Chu JA) gave the decision dismissing the applicant’s renewed application for an extension of time to appeal (‘extension decision’) against the decision of Deputy High Court Judge K. W. Lung given on 22 February 2019 in which he refused to grant leave to the applicant to apply for judicial review.

1.2  The applicant now applies, by a notice of motion filed on 4 November 2019, for leave to appeal against our extension decision to the Court of Final Appeal.

1.3  Doing the best we could to interpret that applicant’s notice of motion, the applicant stated that there was no substance in our judgment for holding that his grounds were not true.  He stated that he did not want to be picked out so he did not complain about the poor performance of his lawyer.  He complained he did not have time to deal with the bundles.

1.4  The applicant’s affirmation stated that the Judge was wrong in holding there was no state acquiescence and that the Judge did not find out the current situation in Bangladesh.

1.5  In the applicant’s written submission, he first regurgitated his own background information.  He then went on to provide the Court with authorities often used in non‑refoulement cases, without showing how those legal principles would apply to his particular circumstances.

1.6  We are of the view that the contents of the documents as provided by the applicant are too broad and vague for this Court to provide any meaningful assessment.  Nowhere did we hold that the applicant’s grounds were not true, which is factually incorrect.  Many of the various other arguments raised, although labelled as being an error of the Judge, in reality was directed against the decisions of the Board and the Director.

2)  Legal principles

2.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3.)  Our view

3.1  The matters stated by the applicant in his notice of motion, affirmation and written submission do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from the matters he has raised in his documents.

3.2  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4)  Disposition

4.  For these reasons, the notice of motion filed on 4 November 2019 is dismissed.

CAMP 130/2019

[2019] HKCA 1192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 130 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1151 OF 2018)

________________________

________________________

________________________

D E C I S I O N

________________________

Hon Cheung JA (giving the Decision of the Court):

1)  Renewed application for extension of time to appeal

1.1  On 20 June 2018, the applicant issued his application for leave for judicial review by Form 86.  

1.2  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 15 June 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 16 June 2017 in rejecting his non-refoulement claim.  The application was filed within time.

1.3  On 22 February 2019, Deputy High Court Judge K.W. Lung dismissed the applicant’s application.  

1.4  Being about 17 days out of time, the applicant took out an application on 25 March 2019 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 29 May 2019 rejected the applicant’s application for an extension of time to appeal.  

1.5  On 17 June 2019, the applicant by summons together with a supporting affirmation issued a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paras 3 to 8.

1.6  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

2.  Briefly stated, the applicant is a Bangladeshi national.  He came to Hong Kong through China illegally and was arrested.  He subsequently raised a non-refoulement claim based on his fear that he would be harmed or killed by members of the Awami League.

3)  The Director’s Decision

3.  The Director decided against the applicant’s non-refoulement claim on 16 June 2017.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, BOR Article 2 (right to life) risk, persecution risk, and torture risk.

4)  The Board’s Decision

4.  The applicant appealed against the Director’s Decision to the Board.  Oral hearing was conducted on 26 February 2018.  The Board dismissed the applicant’s appeal on 15 June 2018.  In gist, amongst other things, the Board rejected the applicant’s claim upon a finding that one of the documents provided as evidence to the Board was a forgery.  The Board after taking all evidence into consideration found that there was no risk of serious harm against the applicant and his fear was not well founded.

5)  Decisions of the Judge

5.  In his decision dated 22 February 2019, the Judge found that during the hearing before him, the applicant said that the grounds for judicial review in his documents were not prepared by himself but by a friend.  Many of the grounds alleged were the applicant’s own opinions or comments without evidence in support.   In his reasons for decision dated 11 June 2019, the Judge did not accept there was any merit in the applicant’s intended appeal.  The applicant told the Judge in court that he simply ‘wanted to stay longer in Hong Kong’.  

6)  Legal principles

6.  In 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 January 2016), 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)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal;

(4)  Prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

7.1  The applicant was around 17 days late when he filed summons in the lower court for extension of time to appeal.  We agree with the Judge that the delay was not long.

(2)  Prospect of the intended appeal

7.2  In our judgment, the applicant does not have any prospect of success in his intended appeal.

7.3  In the present application, the applicant’s summons referred the Court to the contents of his affirmation.  In his affirmation, he stated that his grounds were that the Judge was wrong in law in holding there was no state acquiescence and that he failed to provide detailed reasons.  The applicant did not provide further explanation on these alleged grounds.  We are of the view that these are his own opinions and comments without evidential support.

7.4  In the applicant’s written submissions, he first regurgitated his own background information.  He then went on to provide the Court with a pro forma type of written submission that listed out the authorities often used in non-refoulement cases, without showing how those legal principles would apply to his particular circumstances.  Nowhere can we find any complaint about any error of law in the decision of the Judge.

7.5  The focus of an appeal in this Court is the correctness of the decision of the Judge.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

8)  Disposition

8.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 17 June 2019.

The applicant, unrepresented, acting in person