RE HALDAR BASED

CAMP 96/2019

[2021] HKCA 446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 96 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 951/2017)

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J U D G M E N T

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

1.  On 23 April 2020, this court (Cheung JA and Barma JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Campbell-Moffat J (“the judge”) on 4 December 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 18 June 2020, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“The judges refuse my leave to apply for judicial review, but it is clear in the total judgment judges failed to show any good cause to cancel/refuse my leave, I am very sorry to say this judgment is not fair judgment, I want to go to the Court of Final Appeal”

4.  In the affirmation dated 18 June 2020, the applicant deposed that:

“Affirmation for extension of time to make notice of motion because timely I failed to submit my application”

5.  The applicant lodged a written submission in support of the application on 2 July 2020.  In the written submission, the applicant explained why it is unsafe for him to return to Bangladesh.  He wanted to go to the Court of Final Appeal to obtain a fair judgment.

6.  Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  As accepted by the applicant in his affirmation, this application is out of time.  No explanation for the delay has been provided.  In any event there is no merit in the application.

8.  The matters stated by the applicant do not constitute grounds for granting leave to appeal 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, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

9.  Other than the bare assertion that the judgment refusing extension of time to appeal was unjust, the applicant did not identify any error in that judgment.  The applicant has not provided any viable ground of appeal.

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

11.  For these reasons, the Notice of Motion dated 18 June 2020 is dismissed.

The applicant acting in person

CAMP 96/2019

[2020] HKCA 224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 96 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 951/2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Campbell-Moffat J given on 4 December 2018 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) /adjudicator of the Non-Refoulement Claims Petition Office dated 17 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 31 May 2016 and 26 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally and was arrested by the police on 28 June 2014.  He lodged a non-refoulement claim on 1 July 2014. 

3.  The applicant’s claim was based on threats from his neighbours in Bangladesh, who have a dispute over land with the applicant’s family.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 form.

4.  By a Notice of Decision dated 31 May 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 26 September 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Board.  After a hearing on 13 October 2017, the Board dismissed the appeal on 17 November 2017 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [98] of the Board’s Decision, the Board held that the risk of harm to the applicant upon his return is low.

The judge’s decision

8.  The applicant filed a Form 86 on 24 November 2017 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 24 November 2017, the applicant only said that he wished to challenge the Board’s Decision and the decisions by the Director without giving any ground.

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  After considering the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [10] to [12] of the CALL-1 form:

“10. There were no grounds of review. The Applicant has not complained of any procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Application for extension of time to appeal and grounds for appeal

12.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 27 December 2018, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 14 March 2019.

13.  By a summons dated 20 May 2019, the applicant renewed his application for an extension of time to appeal before this court.  He did not give any explanation for the delay in bringing the intended appeal or mention any ground of appeal in the summons. 

14.  In his skeleton submissions lodged on 10 June 2019, the applicant submitted that:

(1)  he did not get the paper in time so he could not appeal in time;

(2)  the Board and Director lacked “practical knowledge”;

(3)  the solicitor assigned by the Duty Lawyer Service only slept and did not help him, he asked for a replacement unsuccessfully;

(4)  the Board did not give him sufficient opportunity to make submissions; and

(5)  the judge dismissed his application for leave for judicial review without sufficient cause.  The judge ought to have allowed his application because the Board failed to give the applicant opportunity to make submission.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

16.  The applicant claimed that he did not receive the CALL-1 form in time without explaining why that was the case.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

17.  The applicant has not formulated any proper grounds of appeal.  In his written submission, the applicant complained that the Board did not give him sufficient chance to make submissions.  However, this was never raised as a ground for judicial review before the court below.  It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst[2018] HKCA 524, CAMP 54/2018 at §14(4)).  Neither were the other complaints against the Board raised in the court below.  As the judge observed, the applicant put forward no grounds for judicial review before her.  In those circumstances we can see no merit in his complaint that the judge dismissed his application without sufficient cause.   

18.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 20 May 2019 is dismissed accordingly.

19.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.