RE OHID MOHAMMAD

CAMP 283/2021

[2021] HKCA 1852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 283 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2441 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 23 January 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 246). An earlier application for extension of time to appeal was refused by the Deputy Judge on 5 July 2021 (“the EOT Decision”) ([2021] HKCFI 1775).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 22 October 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 March 2018 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 26 January 2016 and subsequently raised a non‑refoulement claim on 30 January 2016 on the basis that if he returned to Bangladesh he would be harmed or killed by people from the Awami League (“AL”) because he was a supporter of the Bangladesh National Party (“BNP”), and the two parties had disputes over the shares of harvest from a state-owned fish farm which was situated in Tongibari where the applicant’s family and uncle used to reside.  Details of the applicant’s claim were summarised by the Judge at [2] ‑ [4] of the Leave Decision.

5.  By a Notice of Decision dated 22 March 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3], and persecution risk^[4].

6.  On 3 April 2018, the applicant appealed against the Director’s Decision to the Board.  The Board heard his appeal on 30 August 2018.  On 22 October 2018, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board found the applicant to be evasive in some answers and he would not be facing a high risk of being subjected to harm if he returned to Bangladesh.  Having assessed the evidence, the Board also considered that state protection and internal relocation would be available to the applicant and he would not face a real risk of any form of harm upon his return to Bangladesh.

The Leave Decision

7.  On 2 November 2018, the applicant filed a Form 86 together with a supporting affirmation for leave to apply for judicial review against the Board’s Decision.  In the Form 86, the applicant contended the Board acted in a procedurally unfair manner in dealing with his appeal and the Board’s Decision was unreasonable or irrational in the public law sense.  He further contended the Board failed to meet the greater care and duty owed to a self-represented claimant.  In his supporting affirmation, he complained that he did not have language assistance and did not have sufficient time to prepare for his appeal before the Board.  He further claimed that the Board relied upon materials which are not officially recognized, hearsay or outdated.

8.  An oral hearing was held on 12 July 2019 which the applicant attended.  He was provided with the assistance of a Bengali interpreter.

9.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:

“12. The applicant appeared before me. He confirmed that he was able to speak freely and tell his stories before the Immigration officer and the Adjudicator. He considered that he had had a fair hearing before the Board.

13. The Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 §14 held that the primary decision makers are the Director and the Board and the Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

14. The Board did not reject his facts completely. It had considered the relevant facts. It applied the relevant statutory provisions and the Convention to the facts and came to its conclusion.

15. Lack of language assistance does not constitute a ground for his application as held by the Court of Appeal in Re Magar Surendra [2019] HKCA 667, 13 June 2019. At paragraph 19, it said:

‘… …The inability to understand the hearing bundle before the board as a result of lack of language or other assistance, even if true, is irrelevant.’

16. The applicant was unable to identify the materials he complained. It is therefore only his bare assertion.

17. All the above grounds fail.

18. The applicant fails to show that he has a reasonable prospect of success in his proposed judicial review.

CONCLUSION

19. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

The EOT Decision

10.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

11.  On 14 July 2020, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was around five months late.

12.  By the EOT Decision, the Deputy Judge refused to grant extension of time to appeal to the applicant.  The Deputy Judge noted that the applicant in his supporting affirmation did not specify any reason for his delay or any ground in support of his application.  The Deputy Judge also noted that the Board considered the applicant’s case and rejected his evidence on the facts of his claim.  The applicant did not say in what respect the Board erred in its Decision.  The Deputy Judge considered that the applicant was not able to show he had any reasonable chance of success in his intended appeal and refused to extend time for his appeal.  Accordingly, the EOT Summons was dismissed.

The Present Application

13.  By a summons dated 27 July 2021, the applicant reapplied for extension of time to appeal against the Leave Decision to this Court.  In the supporting affirmation of the same date, he claimed he did not get any letter from the High Court so he failed to make his application on time.  He however did not point to any errors in the Leave Decision.

14.  In his written submissions lodged on 10 August 2021, the applicant repeated the alleged factual basis of his non-refoulement claim.  He also claimed he did not get any letter from the High Court in relation to the result of his application for leave to apply for judicial review, and as he did not know his case condition and without any judgment, he failed to appeal.

Discussion

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  We consider that the applicant’s delay of around five months as very substantial and the applicant failed to provide any cogent explanation for his delay.  Although he claimed he did not receive the letter from the High Court in relation to the result of his application for leave to apply for judicial review, the applicant provided no explanation or evidence in support of his assertion.  Records from the Court file also show that the address provided by the applicant in his application for leave to apply for judicial review was the same as the one provided in the EOT Summons and the present summons before this Court.

17.  As such, given that the applicant failed to provide any cogent explanation for his delay, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

18.  In assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

19.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge.  He only repeated the facts pertaining to his non-refoulement claim which are general and bare assertions.  They do not constitute viable grounds of appeal.  The intended appeal must fail on this basis alone.

20.  As the applicant failed to identify any proper ground of appeal, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the summons dated 27 July 2021 dismissed.