RE MD MIJANUR RAHMAN

CAMP 532/2022, [2023] HKCA 979

On Appeal From [2022] HKCFI 1728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 532 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2313 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)  Renewed application for extension of time to appeal

1.  On 23 October 2018, the applicant issued his application for leave for judicial review by Form 86 in HCAL 2313/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 12 October 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 25 September 2017 rejecting his non‑refoulement claim. Deputy High Court Judge K W Lung refused to grant leave for judicial review on 9 June 2022.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 23 June 2022). Being out of time for over one month, the applicant took out an application on 4 August 2022 before the Judge requesting an extension of time to appeal. The Judge on 13 September 2022 rejected the applicant’s application for extension of time to appeal.

3.  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 (i.e. 20 September 2022). On 12 December 2022, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.

4.  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

5.  Briefly stated, the applicant is a Bangladesh national. He entered Hong Kong illegally via the Mainland on 15 June 2009. He raised his non‑refoulement claim on 18 June 2009 alleging that he would be harmed or killed by the Awami League (‘AL’) because of his affiliation with the rival Bangladesh Nationalist Party (‘BNP’).

3)  The Director’s Decision

6.  The Director’s decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), BOR Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed/petitioned against the Director’s decisions to the Board. An oral hearing was conducted on 5 June 2018. The Board dismissed the applicant’s appeal/petition. The Board held that the petitioner was only a low level worker for the youth wing of BNP. He was not severely injured in the incidents described by him. The applicant stayed in Dhaka between March 2009 and June 2009 prior to leaving without incident. The applicant never reported the incidents to the Police and it was his own speculation that he would be framed by the Police. The verbal threats were hearsay and his enemy would not make verbal threats if they really intended to kill him.

5)  Decisions of the Judge

8.  The Judge referred to the grounds of the intended judicial review. He held that the applicant had the assistance of both duty lawyer and interpreter before the Director. He was not entitled to have legal assistance at all stages of the proceedings. There was no complaint before the Board that he did not have enough time to prepare for the Board hearing. The Board was not obligated to inform the applicant by phone of its decision. The Ordinance does not provide for another screening for BOR 2 risk. There was no error of law or procedural unfairness.

9.  In his decision dated 13 September 2022, the Judge held that even though the applicant stated that he received the decision not within 14 days, the court record showed that the decision was sent on 9 June 2022. The Judge held that the Board dismissed the applicant’s claim with reasons, and the applicant had failed to show any reasonable prospect of success in his intended appeal. The application for extension of time for appeal was refused.

6)  Legal principles

10.  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

11.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

12.  The applicant was over a month late when he filed his application for extension of time to appeal. The applicant made a bare assertion on paper that he did not receive the Court’s decision within 14 days. The court record showed that the decision was mailed to him on the same day as Form CALL‑1.

(2)  Prospect of the intended appeal

13.  In the applicant’s summons, the applicant asked for leave to advance a new sole ground without specifying what that is. In his affirmation, the applicant repeated that he did not receive the decision below within 14 days but without further elaboration. In his written submissions, the applicant cited case authorities and the statute that are used in non-refoulement cases without specifying how they relate to his case.

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

15.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

16.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 12 December 2022.