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CAMP 585/2021
[2022] HKCA 364
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 585 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO. 1754 OF 2018)
__________________________
| RE |
ALAM JAHANGIR |
Applicant |
__________________________
Before: Hon Chu and Barma JJA in Court
Date of Judgment: 11 March 2022
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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 Deputy High Court Judge Lung (“the Judge”) dated 21 May 2020[1] refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.
2. The applicant has filed a supporting affirmation and also lodged a written submission to support his application.
3. Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave 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 is a national of Bangladesh aged 39. He entered Hong Kong illegally and was arrested by the police on 14 May 2014. He later raised a non-refoulement claim based on his fear of being harmed or killed by Kalam (“K”) and his followers. The applicant claims that K is the assistant of Badal Khondokar (“BK”) who is the Awami League (“AL”) Member of Parliament for his constituency, and that there was enmity between K and his father, who used to be a leading member of AL, and also the applicant because he was a member of the Bangladeshi Nationalist Party (“BNP”). The details of the applicant’s claim were set out in the decision of the first decision of the Director at [7] to [51]. We will not repeat them.
5. By a decision dated 18 August 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds. By his further decision dated 11 August 2017, the Director assessed the claim under the BOR 2 risk[5] ground and decided against it.
6. The applicant appealed the Director’s decision to the Torture Claims Appeal Board (“the Board”). A hearing was held on 5 December 2017. By its decision dated 27 February 2018, the Board dismissed the appeal. The Board found that the applicant’s claims about BK were not supported by independent objective country information and that he demonstrated almost no knowledge of BNP. Considering all the evidence, the Board found the applicant not credible and that he had fabricated and concocted his evidence to advance a claim for non-refoulement protection. The Board held that the risk of harm to the applicant at the hands of AL supporters should he return to Bangladesh was extremely low. It further rejected his claim that he would be arrested for a false murder case filed against him upon return to Bangladesh. The Board concluded that the applicant’s claim was not made out on all applicable grounds.
7. Order 53 rule 3(4) of the Rules of the High Court, Cap. 4A provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. The three months’ period for the applicant to apply for leave to judicially review the Board’s decision expired on 27 May 20918.
8. On 27 August 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He did not put forward any grounds for seeking relief. Nor did he explain the three months’ delay in applying for judicial review.
9. The Judge listed the application for an oral hearing. The applicant was absent at the hearing, and the Judge proceeded to consider the application. The Judge refused to extend the time for the applicant to apply for judicial review, having considered the applicable legal principles, and concluded the intended judicial review did not have 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 decision within 14 days after it was made.
11. By a summons filed on 7 October 2020, the applicant applied for an extension of time to appeal the Judge’s decision. Deputy High Court Judge P Li dealt with the application on the paper, and by his decision handed down on 15 September 2021[6] refused the application.
12. On 23 December 2021, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.
13. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (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 about four months late. He did not explain the delay. Given the substantial and unexplained delay, the applicant has to show that his intended appeal has a real prospect of success.
15. In assessing 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. The applicant did not provide any ground in support of his intended appeal in either the summons or the affirmation.
18. The written submission states that the current ruling party and the current government in Bangladesh are the applicant’s enemies and they have destroyed all opposition, using the police and “political workers” to kill people. It also asserts that many of the applicant’s friends had been killed by the police, and that the applicant is only lucky.
19. We are of the view that what have been stated in the written submission do not constitute viable grounds of appeal. Assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker. The Board had, for the reasons it gave, rejected the applicant’s claims as being incredible. The applicant has not pointed to any error in the Board’s assessment and finding. There are thus no primary facts to support the applicant’s claim of risk of harm. The assertions in the written submission therefore have no evidential support.
20. We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to extend the time for applying for judicial review.
21. In the circumstances, the applicant’s intended appeal against the Judge’s decision has no prospect of success. A such, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 23 December 2021.
| (Carlye Chu) |
(Aarif Barma) |
| Justice of Appeal |
Justice of Appeal |
The applicant, unrepresented, acted in person.
[1] [2020] HKCFI 875
[2] This refers to the claim under Part VIIC of the Immigration Ordinance, Cap. 115.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[4] This refers to the 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.
[5] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.
[6] [2021] HKCFI 2687
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