RE SHAMIM MIAH

HCAL 253/2017

[2019] HKCFI 1530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 253 OF 2017

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D E C I S I O N

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Introduction

1.  The Applicant seeks leave to appeal out of time against the order made by Deputy High Court Judge Woodcock (“the Judge”) on 8 September 2017 in relation to his application for leave for judicial review in HCAL253/2017.

2.  The Applicant is a national of Bangladesh. He claimed he would be harmed or killed by his creditors and people of the Awami League.

3.  The Applicant had travelled to Hong Kong prior to 2002 as visitor under the name of Shamim born on 1 February 1975. He overstayed and was deported to Bangladesh on 5 September 2002. 

4.  The Applicant came to Hong Kong again on 22 October 2004 under his present identity, with a date of birth of 8 October 1974. 

5.  Between October 2004 and March 2005, the Applicant travelled between Hong Kong and China. He returned to Bangladesh on 28 March 2005 and came to Hong Kong again on 18 July 2005. He travelled between Hong Kong and China.

6.  The Applicant last entered Hong Kong on 31 July 2005. He was permitted to stay until 4 August 2005. He did not leave as required.

7.  The Applicant was arrested by the police on 13 December 2007. He lodged a torture claim on 26 February 2008.

8.  The Applicant's claim was refused by the Director of Immigration (“the Director”) on 8 May 2015 with respect to these three applicable grounds: (i) risk of torture,[1] (ii) risk of persecution[2] and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3].

9.  On 26 October 2016, the Director refused the Applicant's claim with respect to the last applicable ground: risk of violation of the right to life (BOR2 risk)[4].

10.  The Applicant appealed to the Torture Claims Appeal Board (“the Board”). The Adjudicator dismissed his appeal on 18 May 2017. 

11.  On 31 May 2017, the Applicant sought leave for judicial review against the Adjudicator’s decision.

12.  The Judge set down the matter for hearing on 18 August 2017. The Applicant was absent. Nevertheless, the Judge considered the Applicant's complaints under rigorous examination and anxious scrutiny. She found the Adjudicator’s decision to be without fault. There were no errors of law or procedural unfairness. The Adjudicator had adhered to a high standard of fairness. His decision was not Wednesbury unreasonable. The Judge concluded the Applicant’s complaints were not reasonably arguable. There was no realistic prospect of success in his application so the Judge refused to grant leave for judicial review.

13.  The Judge’s order was made on 8 September 2017. It was duly sent to the Applicant. The Applicant failed to lodge his appeal within 14 days.[5] He only took out a summons almost 11 months later on 7 August 2018 to apply for leave to appeal out of time.

Grounds of application for extension of time

14.  In his affirmation dated 7 August 2018, the Applicant stated he did not get the Judge’s order dated 8 September 2017. He said the address on Form 86 (13/F, No. 140 Yee Kuk Street, Sham Shui Po) was his landlord’s address. The landlord used to bring all the mails to him. However, the landlord had gone to China so the Applicant failed to get any letter from him.

15.  The Applicant said in his affirmation that he had good grounds of appeal. However, he failed to specify any of those grounds. Rather, he repeated the grounds of his application for leave for judicial review. He made one more complaint against the Adjudicator, alleging the latter misdirected himself in law.

16.  On 18 September 2018, the Applicant told me he had been living at Room 5, 4/F No. 140 Yee Kuk Street since August 2008. He said there was no 13/F in that building. He did not get the Judge’s decision and only knew of it after he had gone to the Immigration Office in Tuen Mun to sign for recognisance. Then he came to the court to search the file. The Applicant said he was aware of the Judge’s decision only on 1 August 2018. A friend helped him to prepare the documents, which contained all the grounds of his current application.

17.  In court, the Applicant was told he must specify his grounds of appeal to show a reasonable prospect of success in reversing the Judge’s decision. He still failed to specify any ground but just said he could not go back to his country.

Discussion

18.  In considering whether to extend time for appealing against an order to refuse leave for judicial review, the court will have regard to: (i) the length of delay; (ii) the reasons for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the putative respondent if extension of time was granted.[6]

19.  The Applicant should file his appeal against the Judge’s decision within 14 days from 8 September 2017. Yet, he only applied for extension of time almost eleven months later on 7 August 2018. He was very late. The prejudice that would be caused to the putative respondent could not be said to be insignificant.

20.  The Applicant said he had been living at Room 5, 4/F of No. 140 Yee Kuk Street since August 2008. Yet, he provided the address of ‘13/F, No. 140 Yee Kuk Street’ in Form 86 and his previous affirmation dated 31 May 2017. In his current affirmation dated 7 August 2018, the Applicant alleged that was his landlord’s address. In court, he said there was actually no 13/F in that building.

21.  If the Applicant did not receive the notice of hearing to appear before the Judge and also failed to get the Judge’s decision later, it was purely his own fault for not providing a proper address. The Applicant did not have good reason for his delay.

22.  It is said in Nupur Mst v Director of Immigration [2018] HKCA 524 that in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant and the prospect of an appeal is assessed by reference to his intended grounds of appeal.  The Court of Appeal would not examine the decision of the Board afresh as if it is a fresh application for judicial review.

23.  It is repeated in Re Islam Rafiqul that “…In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse 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…”.[7]

24.  Although the Applicant did not attend the hearing before the Judge on 18 August 2017, the Judge still considered his complaints under rigorous examination and anxious scrutiny. She found the Adjudicator’s decision to be without fault. There were no errors of law or procedural unfairness. The Adjudicator had adhered to a high standard of fairness and his decision was not Wednesbury unreasonable. The Judge concluded the Applicant’s complaints were not reasonably arguable and there was no realistic prospect of success in the Applicant's application. She thus refused to grant leave for judicial review.

25.  The Applicant did not specify any ground for his intended appeal. He could not state any ground even though he was invited to do so in court. The Applicant failed to advance any reasonably arguable ground and thus failed to show any reasonable prospect of success in his intended appeal.

Conclusion

26.  The Applicant does not have any good reason for his delay in lodging appeal. He also fails to show he has any reasonable prospect of success in his intended appeal. I thus refuse his application for leave to appeal out of time.