RE MD ABU HENA

CAMP 183/2021

[2022] HKCA 938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 183 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 598 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.  On 25 October 2021, this Court handed down the decision ([2021] HKCA 1573)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Bruno Chan given on 11 August 2020 who refused his application for extension of time for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 21 December 2021, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s judgment to the Court of Final Appeal out of time.  The applicant has not lodged any written submission.

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 the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (Cap. 484)  provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5)  further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by about one month.  The applicant did not explain in the supporting affirmation his delay, but simply said that the notice of motion was out of time and it was important for him.

7.  As to the merit of the intended appeal, section 22(1)(b)  of the HKCFAO provides that 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.

8.  The notice of motion stated :

‘ The Director of Immigration rejected my non-refoulement claim. The adjudicator of Torture Claims Appeal Board too rejected my claim. The High Court and the Court of Appeal dismissed my leave to apply for judicial review. I want to go to the Court of Final Appeal.’

9.  The applicant’s affirmation stated that ‘It is important for me.  Please accept my application.’ 

10.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

11.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.

The applicant, unrepresented, acting in person

CAMP 183/2021

[2021] HKCA 1573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 183 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 598 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.  On 10 April 2018, the applicant issued his application for leave for judicial review by Form 86. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 6 January 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 19 January 2015 rejecting his non-refoulement claim.  The application was brought out of time by over one year.

2.  In his decision of 11 August 2020, Deputy High Court Judge Bruno Chan held that the three-month period for the applicant to file a Form 86 for leave for judicial review against the decision of the Board ended on 6 April 2017.  He considered whether extension of time should be granted. He refused to do so and dismissed the application.

3.  The applicant had 14 days to appeal against the decision.  Being out of time, the applicant took out an application on 19 October 2020 before the Judge requesting an extension of time to appeal.  The Judge on 15 April 2021 rejected the applicant’s application.  The Judge stated that the 14-day period ended on 25 August 2020.  This is not entirely correct given that August is the usual month of Court vacation.  This means the deadline for the 14-day period from 11 August 2020 is 14 September 2020.  The summons for extension of time was taken out on 19 October 2020.  This means the applicant was about one month late.  

4.  Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 21 May 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The application is late by about one month.

5.  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 and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.  Briefly stated, the applicant is a Bangladesh national.  He came into Hong Kong illegally by boat in mid March 2007.  He subsequently raised a non-refoulement claim on 3 May 2008 based on his fear that he would be harmed or killed by the Shahin group, a branch of the Bangladesh Nationalist Party (‘BNP’)  for failing to re-join the group.

3)  The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 19 January 2015.  The Decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  risk, as well as other statutory and convention rights against torture and persecution.

8.  The Director decided against the applicant’s right to life claim on 23 January 2017 (‘the Director’s Further Decision’). The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board on 28 January 2015.  An oral hearing was conducted on 18 December 2015 for the Board’s assessment of all applicable grounds.  The Board found that the first alleged threat received by the applicant was only a verbal threat.  On the whole, the applicant was not physically abused.  The creditor’s threat to the applicant was for recruitment of the applicant to the Shahin group and was a private matter.  Shahin was not a state actor.  The applicant did not report the matter to the local police.  The Board did not accept that the applicant would be in danger of being subjected to torture after he returned to Bangladesh.  The minimum level of severity under the claim of torture was not satisfied.  The Board dismissed the applicant’s appeal and the Director’s Decision was confirmed.

5)  Decisions of the Judge

10.  In his decision dated 24 August 2020, the Judge held that the applicant gave no details or particulars as to why he was seriously late for his application for judicial review.  There was a failure by the applicant to put forward any proper ground for the intended challenge.  The applicant failed to show that there was any error of law in the Board’s Decision.  

11.  In his decision dated 15 April 2021, the Judge held the applicant did not provide any particulars when he claimed that he ‘did not receive the decision timely’.  The applicant cannot explain why during the pandemic he was able to report to the Immigration Department regularly but was unable to file his appeal to the Court.  More importantly, the applicant provided no draft grounds of appeal.  There was no identification of any error in the decision.

6)  Legal principles

12.  In considering whether to extend time for appeal, the Court will have regard to :

(1)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal; and

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

7)  Analysis

(1)  Length of delay and reasons for the delay

13.  A one-month delay in lodging the appeal is a significant delay and the applicant has not offered a proper explanation.  The applicant in his summons and affirmation stated that he did not receive any letter from the Court.  He stated that by the time he was notified by the Immigration Officer of the result of his judicial review application, he was already out of time.  No particulars nor explanations were provided.  In his written submissions, he repeated the factual background of his case.  He repeated again that he did not receive any letter from the Court.  He stated that if he did not know, it was not possible for him to appeal.  As was stated by the Judge in his decision, the Court decision was sent to the applicant’s same last reported address that he provided to the Court without being returned through undelivered mail.

(2)  Prospect of the intended appeal

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

15.  The Judge was correct to rule that the delay in the judicial review application was significant with a delay of over one year.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant extension of time to apply for judicial review.  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

16.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 21 May 2021.

The applicant, unrepresented, acting in person