RE MD ABDULLAH AL MAMUN

CAMP 309/2021

[2021] HKCA 2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 309 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1420 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 19 July 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 27 April 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 23 February 2017 rejecting his non-refoulement claim. The application was brought within time.

2.  In his decision of 14 April 2021, Deputy High Court Judge K W Lung refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time, the applicant took out an application on 18 June 2021 before the Judge requesting an extension of time to appeal.  He was about one and a half months late.  The Judge on 15 July 2021 rejected the applicant’s application.    

4.  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 2 August 2021, the applicant filed the present summons out of time (nine days late due to summer vacation) to make a further application to this Court for extension of time to appeal. 

5.  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

6.  Briefly stated, the applicant is a Bangladesh national.  He entered Hong Kong illegally from Mainland China in April 2013 as alleged.  The applicant raised his non‑refoulement claim on 4 September 2013 on his fear that he would be harmed or killed by Rajib’s elder brother, Raj, who is a member of the Awami League because the applicant was from the rival Bangladesh National Party.  Rajib was killed in a fight. Although the applicant was present at the scene, he did not take part in the fight.  The applicant further alleged that he was wanted by the police.

3)  The Director’s Decision

7.  The Director decided against the applicant’s non‑refoulement claim on 23 February 2017.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board on 8 March 2017. An oral hearing was conducted on 19 January 2018.  The Board dismissed the applicant’s appeal on 27 April 2018 and the Director’s Decision was affirmed.  The Board held that it rejected the claims that the applicant would face torture, ill‑treatment, or any real risk of it from Raj, Awami League supporters or other influential people because of Rajib’s death.  It rejected the claim that the applicant is being pursued by the police and would face torture and denied a fair trial.  The applicant was able to travel freely.  There was no evidence of state acquiescence.  There was no evidence that the government was unwilling to help the applicant.

5)  Decisions of the Judge

9.  In his decision dated 14 April 2021, the Judge held that the Board rejected the applicant’s case based on the facts of the case.  There was no error of law or procedural unfairness in the Board’s decision.

10.  In his decision dated 15 July 2021, the Judge held that the applicant still was not able to say in what respect the Board has erred in its decision.

6)  Legal principles

11.  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

12.  There was substantial delay by the applicant when he lodged his application below for extension of time to appeal.  There was also delay in complying with the time requirement for his present renewed application.  We will, however, focus on the merits of the intended appeal.

(2)  Prospect of the intended appeal

13.  In the applicant’s written submissions, he provided six pages of general legal principles and authority for non‑refoulement cases without specifying how they relate to the applicant’s circumstances.

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

15.  The Deputy Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant 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, the applicant’s summons dated 2 August 2021 is dismissed.