RE MD NAZMUL

CAMP 316/2021

[2021] HKCA 1466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 316 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 174 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Campbell-Moffat J (“the Judge”) dated 24 April 2019 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of his application.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 6 November 2017 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 3 January 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 44.  He arrived in Hong Kong on 11 August 2005 and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 14 August 2007.  He made a torture claim which was rejected on 27 September 2013.  In June 2013, he raised a non-refoulement based on fear of being harmed or killed by members of Awami League and Bangladesh Nationalist Party, including his two previous spouses and their family members.  The details of the applicant’s claim were set out in the Director’s first decision at [7] and the Board’s first decision at [15] to [24].  We will not repeat them.       

6.  By his decision dated 3 January 2017, the Director rejected the applicant’s claim on the BOR 3 risk[1] and persecution risk[2] grounds. There was no consideration of the torture risk[3] due to the rejection of the previous torture claim.

7.  The applicant’s appeal against the Director’s decision to the Board was listed for hearing on 31 August 2017.  By its decision dated 6 November 2017, the Board dismissed the appeal.  The Board did not find the applicant a credible witness having regard to the multiple material inconsistencies and other problems with his account that had been highlighted in the decision.  It found the applicant to have fabricated his claims to create a basis for his non-refoulement application.  The Board held that the applicant failed to establish he faces a real risk of harm, and concluded that he is not entitled to non-refoulement protection on any of the appliable grounds.

8.  On 6 February 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decisions.  The applicant did not provide any grounds for seeking relief.    

9.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 24 April 2019[4], the Judge refused the application.  In brief, the Judge noted that the applicant did not provide any grounds for seeking relief and went on to examine the Board’s decision.  She found there was no error of law or procedural unfairness in the Board’s decision, and concluded that the intended judicial review has no reasonable prospect of success. 

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 8 May 2019.

11.  By a summons filed on 23 December 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application at a hearing on 7 May 2021, and dismissed it at the conclusion of the hearing[5]. 

12.  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 4 August 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The application is late by more than two months.

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

14.  The applicant was late by more than one year and seven months when he filed the 23 December 2020 summons.  This is very serious delay.  Both in the application before the Judge and in this application, the applicant stated that he did not receive the Court’s decision.  The Court record shows that the Form CALL-1 was sent by registered post to the address given by the applicant, but the applicant, despite notification by the Post Office, did not collect the letter from the Post office; hence it was returned unclaimed to the Court on 17 May 2019.  The non-delivery of the Judges’ decision was the applicant’s own making.  We do not find the delay satisfactorily explained.      

15.  As for the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  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.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  In the present application, the applicant stated in the summons that the Judge was wrong in accepting the Board’s finding had failed to consider all the applicable grounds, especially the BOR 2 risk ground.  He further stated in his supporting affirmation that he will face hardship if he were to return to his country.

18.  The written submission quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and also made reference to the Wednesbury unreasonableness principle.  It is said that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim.  It also complained that the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal without properly assessing the applicant’s credibility.  The written submission further recited section 37ZT(2) of the Immigration Ordinance, which relates to late filing of notice of appeal to the Board. 

19.  In our view, the grounds and the arguments put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  The grounds set out in the summons and supporting affirmation are only bare general statements, with no details or particulars.  The ground is in any event unarguable in that it is not the duty of the Court in judicial review applications to assess an applicant’s non-refoulement claim afresh.  The Director and the Board are the primary decision makers and the Court acts in a supervisory role.  The Court will only interfere if the applicant can demonstrate error of law, irrationality or procedural unfairness in the Board’s decision and reasoning.    

20.  As for the written submission, it was not shown how the cases cited and the legal propositions quoted in it relate to the applicant’s case.  The reference to section 37ZT(2) of the Immigration Ordinance is misplaced as the notice of appeal against the Director’s decision was filed within time.  

21.  We have also examined the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  We agree that the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing leave to apply for judicial review.

22.  As the applicant’s intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 4 August 2021.