RE DAPTARI MOHAMMAD NAWEM

CAMP 258/2022

[2023] HKCA 346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 258 OF 2022

(ON APPEAL FROM HCAL NO. 2363 OF 2018)

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DECISION

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

I.  Renewed application for extension of time to appeal

1.  On 26 October 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/Non-refoulement Claims Petition Office (the ‘Board’) dated 9 November 2017 which dismissed his appeal against the decision of the Director of Immigration (the ‘Director’) dated 23 February 2017 rejecting his claim for non - refoulement protection.

2.  In his decision of 21 January 2022 (the ‘Decision’), Deputy High Court Judge KW Lung refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the Decision.  Being out of time, the applicant filed a summons on 17 May 2022 for appeal out of time.  The Judge on 17 June 2022 rejected the applicant’s application (the ‘EOT Decision’).

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 18 July 2022 (late for over three weeks), the applicant filed the present summons for leave to appeal against the EOT Decision.  We will treat it as a further application to this Court for extension of time to appeal.

5.  Under Order 59, rule 14A(1) of the Rules of the High Court, 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.

II.  Legal principles

6.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 2 October 2012 and was arrested on 3 October 2012.  He lodged a non - refoulement claim on 20 March 2014 after his previous torture claim was rejected on the basis that, if refouled, he would be harmed or killed by members of Awami League (‘AL’) and the government’s special force Rapid Action Batallion because of his affiliation with the rival party Jamaat-e-Islami (‘JEI’).  He also feared that JEI members would harm or kill him because he took some money away from them.

7.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of the Decision.

III.  The Director’s Decision

8.  The Director refused the applicant’s claim on the grounds of BOR 2 risk, BOR 3 risk and Persecution risk.

IV.  The Board’s Decision

9.  After a hearing held on 13 September 2017, the Board dismissed the applicant’s appeal on the grounds that there was no concrete or cogent evidence to support the applicant’s claims and that, even taking the applicant’s claim to the highest, the applicant failed to establish that he was personally targeted by the AL or the government or that the AL targeted ordinary JEI supporters. 

V.  Decision of the Judge

10.  In his Form 86, he claimed that the decision to refuse his non-refoulement claim was unfair and unreasonable because his claim was not carefully and fairly considered.  In his affirmation, he claimed that he was not educated; that he did not receive any legal assistance; that the Board decided the case on assumption without considering the evidence; that the Board made inference without evidence.

11.  The applicant did not request an oral hearing before the Judge.  The Judge decided that it was appropriate to determine the application on paper without an oral hearing.

12.  Although the application for leave for judicial review was late for about eight and a half months, the Judge began by considering the merit of the applicant’s case.  The Judge examined the Board’s Decision with rigorous examination and anxious scrutiny but did not find any error of law or procedural unfairness in the Board’s Decision or any ground to challenge the Board’s findings as Wednesbury unreasonable or irrational.  The Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review. He refused to grant extension of time and refused the leave application.

13.  In the EOT Decision, despite the delay of over three months, the Judge focused on the merits of the case.  The Judge found that there was no realistic prospect of success in the intended appeal and therefore refused the applicant’s application for extension of time to appeal.

VI.  Legal principles

14.  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.

VII.   Analysis

1)  Length of delay and reasons for the delay

15.  The applicant was late for over three months when he filed his application for extension of time to appeal before the Judge.  His renewed application to this Court was again late by over three weeks.  In the summons and affirmation filed on 18 July 2022, the applicant claimed that he did not receive the Decision within 14 days because the document was lost in post and he could only obtain the documents after searching the court’s file.  As mentioned in [5] of the EOT Decision, according to the court’s record, the Decision was sent to the applicant’s last known address on 21 January 2022 by ordinary post and he is deemed to have received the same on 25 January 2022. 

16.  In our view, the applicant has failed to provide any satisfactory explanation for his inordinate delay.  More importantly, for the reasons set out below, we agree with the Judge that the intended appeal has no prospect of success.

2)  Prospect of the intended appeal

17.  The applicant did not identify any proposed grounds of appeal.  In his written submissions dated 28 July 2022, he recited case authorities and statutory reference which are frequently used in general non - refoulement claims without explaining how those principles were related to his case.

18.  On the prospect of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal.

19.  Furthermore, the Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

20.  In our view, the applicant has not identified any proper grounds of appeal or errors committed by the Judge.  The intended appeal is completely devoid of merits.

VIII.  Disposition

21.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons dated 18 July 2022.