RE MD SYDUL HAQUE

HCMP 73/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 73OF 2013

(ON AN INTENDED APPEAL FROM HCAL NO. 177 OF 2012)

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DECISION

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1.  By summons filed on 11 January 2013, the applicant applies for an extension of time to appeal against the decision of Chung J made on 19 December 2012, refusing him leave to apply for judicial review.

2.  The applicant is a Bangladesh national.  He entered Hong Kong in 2001 on a short visa and remained after the time for staying in Hong Kong had expired.  On 28 April 2012, he was arrested by police.  He made a claim to the Director of Immigration under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which was refused on 24 October 2012. He petitioned against the Director’s refusal.  By a decision dated 29 November 2012, the Adjudicator dismissed the applicant’s petition.

3.  On 14 December 2012, the applicant filed an application seeking leave to apply for judicial review of the Adjudicator’s decision.  On a consideration of the paper, Chung J refused to grant leave for the reason that “Neither the Form 86 nor the applicant’s supporting affirmation has shown any (a) procedural or substantive errors on the part of the decision-makers; (b) other valid grounds.”

4.  Order 53 rule 3(4) of The Rules of the High Court, Cap.4A requires an appeal against the refusal of leave to apply for judicial review to be made within 14 days after the order is made.   

5.  In deciding whether to grant an extension of time to appeal, the court will normally take into account the following factors:

(1)  The length of the delay;

(2)  The reason for the delay;

(3)  The chances of the appeal succeeding if time is extended; and

(4)  The prejudice to the potential respondent if time is extended.

See Hong Kong Civil Practice 2013 Vol.1 para.59/4/9.

6.  The applicant is about two weeks out of time when he made the present application.  It is not a serious delay.  His reason for the delay is that he does not have legal advice on the legal requirement. This is not a good reason.  However, the most important consideration is the chances of success of the intended appeal.

7.  The applicant has not provided a draft Grounds of Appeal.  In his supporting papers, he merely stated that he could not go back to Bangladesh since his life would be in danger.  He repeated this at the hearing, explaining that the danger referred to was the same matter he relies on in making the claim under CAT.

8.  With the agreement of the applicant, I had looked at the papers he filed in the application for leave to apply for judicial review, including the written reasons of the Adjudicator. 

9.  It appears from the written reasons of the Adjudicator that the applicant’s claim under CAT was made on the basis that when he was running a garment accessories shop in the market in Dhaka, he was attacked by some extortionists who used to come to demand money.  The applicant had heard that these extortionists were related to the political party and associations that were in power.  The incident took place in March 2000, when the extortionists physically attacked him causing injuries to his left thumb, forehead, neck and legs.  The applicant made a report to the police.  He later sold his business, left Dhaka and went to other places.  He had difficulties finding work.  In 2001, he departed Bangladesh and came to Hong Kong.

10.  The Adjudicator dismissed his petition for the reason that he failed to make out a case for non-refoulement.  The Adjudicator considered that on the applicant’s case, the attack was not committed by persons acting in the official capacity of the national Government of Bangladesh, the injuries sustained did not meet the requirement of “severe pain and physical or mental suffering reaching the minimum level of severity”, and the cause of the attack did not come within the requirement of obtaining information or a confession from the applicant or a third party or as a result of discrimination.  In coming to these conclusions, the Adjudicator had assumed that the version given by the applicant to be credible, though he also observed that the torture claim was not made until after the applicant was arrested and that this undermined the credibility of the applicant’s case.       

11.  In applying for leave to bring judicial review, the applicant merely claimed that he would be killed by his enemy if he were to return to Bangladesh.  This is clearly insufficient to show any error, impropriety or unlawfulness in the decision of the Adjudicator.  The applicant has failed to show that his intended judicial review enjoys reasonable prospects of success.  The Judge is correct in refusing leave to apply for judicial review. The intended appeal against the Judge’s refusal of leave has no reasonable chance of success. 

12.  In the circumstances, the court should not exercise discretion in favour of extending the time for appeal.  Accordingly, I dismiss the application for extension of time to appeal.