RE RAHMAN TANJIL

CAMP 104/2019

[2019] HKCA 1208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 104 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 127 OF 2017)

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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)  Renewed application for extension of time to appeal

1.1 On 10 April 2017, the applicant issued his application for leave for judicial review by Form 86.

1.2 The applicant’s intended judicial review was against the Director’s decision and the decision of the Torture Claims Appeal Board (‘the Board’) dated 30 March 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 30 November 2015 rejecting his non-refoulement claim. The application was filed within time.

1.3 On 25 August 2017, Deputy High Court Judge Woodcock dismissed the applicant’s application.

1.4 Being about 18 months out of time, the applicant issued an application on 13 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 29 May 2019, the applicant by summons 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. The applicant lodged his written submissions on 3 July 2019.

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 entered Hong Kong illegally on 30 November 2013. He was arrested on 15 January 2014. He subsequently raised a non-refoulement claim based on his fear that his life would be in danger from members of the Awami League because of his past participation in the youth wing of the Bangladesh Nationalist Party. He could not name those he feared.

3)  The Director’s Decision

3. The Director decided against the applicant’s non-refoulement claim on 30 November 2015. The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

4)  The Board’s Decision

4. The applicant appealed against the Director’s Decision to the Board on 10 December 2015. The oral hearing was conducted on 22 February 2017. The Board dismissed the applicant’s appeal on 30 March 2017. In gist, the Board rejected the applicant’s claim upon analysis of all heads of claims: BOR 3 risk, torture risk, and persecution risk.

5)  Decisions of the Judge

5.1 A hearing of the application for leave to apply for judicial review was set down on 10 August 2017 but the applicant was absent and the Judge considered the matter on paper. She found no substance in the alleged grounds of the applicant for judicial review. She held that the applicant’s supporting affirmation ‘does not cover all grounds set out nor are they substantiated’. No error of law or procedure was found.

5.2 The Judge found in her decision for extension of time to appeal dated 29 May 2019 that a 19-month delay was a substantial delay. She held that the applicant admitted that it was his own fault for not receiving the order of the Court dated 25 August 2017. In any event, the Judge found no merit in the applicant’s extension application.

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 19 months late when he filed summons in the court below for extension of time to appeal. The Judge considered that, in any event, there was no merit in the applicant’s application.

7.2 In our view, the length of delay for his first extension of time to appeal application was very substantial. Therefore, the intended appeal must satisfy real prospect of success before an extension of time will be granted: Re Ansar Muhammad [2018] HKCA 227.

(2) Prospect of the intended appeal

7.3 In our judgment, the applicant does not meet the real prospect of success threshold. Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success.

7.4 In the present summons, the applicant stated that he applied for ‘The summons filed on 13 March 2019 be dismissed’. He probably was referring to the order dismissing his summons of 13 March 2019. The applicant’s affirmation stated that all his statements were true. No particulars were provided by the applicant.

7.5 In the applicant’s written submissions, he described that he was incarcerated at the relevant time and did not receive the Court’s order or decision of the Judge, causing his late application to appeal. He stated that the Judge was wrong in stating that ‘he went into hiding’ without telling the Court what was wrong. He also complained that the Judge refused his application for judicial review without any good reason. 

7.6 We are of the view that the most important consideration in an extension of time to appeal application is whether there are merits in the intended appeal. There are no merits in the applicant’s case. He has not identified any error of law or procedural unfairness in the decision of the Judge dated 25 August 2017.

8)  Disposition

8. As the intended appeal is unarguable, it will be futile to grant an extension of time. Accordingly, we will dismiss the applicant’s summons dated 29 May 2019.