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CAMP 247/2022
[2023] HKCA 292
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 247 OF 2022
(ON AN INTENDED APPEAL FROM HCAL 2786/2019)
____________________
| RE: |
HOSSAIN BILLAL |
Applicant |
____________________
| Before: |
Hon Kwan VP and Barma JA in Court |
| Date of Judgment: |
8 March 2023 |
___________________
J U D G M E N T
___________________
Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of DHCJ P Li (“the Judge”) dated 24 March 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 9 September 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 10 December 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).
Background
2. The applicant is a national of Bangladesh. He entered Hong Kong illegally on 20 October 2015, and he was referred to the Immigration Department. On 25 October 2015, he lodged a non-refoulement claim.
3. The applicant’s claim was based on a fear of being harmed or killed by members of the Bangladeshi Awami League. The details of the applicant’s claim have been summarised by the Judge at [2] and [8] of his decision (“the CALL-1 Form”)[1].
4. By a Notice of Decision dated 10 December 2018, the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR2 risk[4] and the BOR 3 risk[5].
5. The applicant appealed to the Board. After a hearing on 19 June 2019, the Board dismissed the applicant’s appeal by its Decision. The Board concluded that the applicant had failed to establish on the evidence that he was a continued target of his assailants. In any event, internal relocation within Bangladesh was a viable option for him.
The Judge’s decision
6. The applicant filed a Form 86 on 23 September 2019 seeking to judicially review the Board’s Decision, without setting out any grounds. In his supporting affirmation, he simply exhibited copies of the Director’s and the Board’s Decisions.
7. On 26 May 2021, the applicant applied to withdraw the application for leave, asserting that his problem in Bangladesh had been resolved and that he wished to return. Leave was granted for the withdrawal on 4 June 2021.
8. However, on 7 December 2021, the applicant applied to reinstate his leave application, claiming that the problem was in fact unresolved. After hearing from the applicant, the court decided to reinstate the application.
9. After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [16] to [20] of the CALL‑1 Form:
“16. This court held a hearing on 17/1/2022. The applicant asserted that when his younger brother returned to Bangladesh, the problem started again. The person, who gave assurance that the problem was resolved, had changed his mind. He had not mentioned that person in his claim. This court had grave doubt about this explanation. Nevertheless, leave was granted to re-instate his leave application.
17. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duties of the TCAB and the Director. In general, this court would not interfere.
18. I agree with the findings of the adjudicator. The applicant is not truthful. His evidence could not support any real risk of harm. It is unconvincing that the AL people would still target him after 10 years. The adjudicator is justified in rejecting his appeal.
19. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.
Conclusion
20. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.”
The present application for extension of time to appeal
10. The applicant’s address as stated in his Form 86 was Fung Yue Building, 70-86 Kau Yuk Road, Yuen Long (“the Address”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 24 March 2022, and were not returned undelivered.
11. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 24 March 2022.
12. The applicant thereafter took out a summons in the Court of First Instance on 3 May 2022 seeking extension of time to appeal, in which his address was stated to be the Address. In his supporting affirmation filed on the same date, he stated that he “did not get the High Court judgment timely”.
13. The applicant’s application for leave to appeal out of time was dismissed by the DHCJ To on 24 June 2022[6].
14. By a summons filed on 13 July 2022, the applicant renewed his application for an extension of time to appeal before this court. In the summons and in his supporting affirmation, the applicant repeated that he did not receive the Judge’s decision and that he disagreed with it.
15. In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submission with the court on time. However, he subsequently lodged written submissions one day late, on 28 July 2022. Although the failure to lodge written submissions in accordance with the directions given would usually mean that the applicant would be deemed to have abandoned his right to make and rely on written submissions, in this case the delay in lodging the written submissions was very short, and we will have regard to them. The submissions did not add anything of substance, with the applicant simply claiming that there were many errors in the Board’s decision which the Judge did not find. However, no particulars were given of what these errors might be.
16. On 15 November 2022, the applicant purportedly sought a “dismissal of the notice of motion filed on the 13 day of July, 2022” by filing a Request for Dismissal of Appeal (“Request”). No explanation whether in the form of an affirmation or written submissions was given for the Request, which was in any event inappropriate as no appeal is yet in existence. As we explain below, the application for extension of time to appeal has no merits and falls to be dismissed in any event, and we have therefore not dealt with the Request, and have instead simply determined the application on its merits.
Discussion
17. 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. We have, therefore, determined the applicant’s application on the basis of the documents filed.
18. As noted above, the Judge’s Decision was sent to the last known address of the applicant and was not returned undelivered. The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.
19. There is no explanation on the part of the applicant as to how and when he had come to learn of the Judge’s decision dated 24 March 2022.
20. In the circumstances, we reject the applicant’s explanation for his delay in lodging his intended appeal.
21. We have nonetheless proceeded to consider the merits of the intended appeal.
22. The applicant has not condescended to any particulars, in the Form 86 or otherwise (including his written submissions before us), as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
23. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
24. It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge. This has clearly not been done here.
25. For these reasons, we do not see any prospect of success in the intended appeal. This court will not grant an extension of time for a hopeless appeal. The summons filed on 13 July 2022 is accordingly dismissed.
(SUSAN KWAN)
Vice-President |
(AARIF BARMA)
Justice of Appeal |
The applicant acting in person
[1] [2022] HKCFI 837
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2022] HKCFI 1808
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