RE SALIM MD

CAMP 360/2021

[2022] HKCA 567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 360 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1284 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)  :

I.  Renewed application for extension of time to appeal

1.  On 5 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 19 June 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 18 September 2017 rejecting his non-refoulement claim.  The application was brought within time.

2.  In his decision of 4 November 2020, Deputy High Court Judge C P Pang 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 i.e. by 18 November 2020. Being out of time for over two months, the applicant took out an application on 9 February 2021 before the Judge requesting an extension of time to appeal.  The Judge on 19 August 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.  This seven-day period is, however, not reckoned during the Court vacation month of August under section 31 of the High Court Ordinance (Cap. 4).  On 26 August 2021, the applicant filed the present summons within time 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.

II.  Factual background

6.  Briefly stated, the applicant is a Bangladesh national.  He entered Hong Kong illegally and was arrested in October 2015.  The applicant raised his non-refoulement claim soon after his arrest on his fear that he as a member of a political party called BNP would be harmed or killed by members of the rival Awami League.

III.  The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 18 September 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.

IV.  The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board on 25 September 2017.  An oral hearing was conducted on 10 May 2018.  The Board dismissed the applicant’s appeal on 19 June 2018 and the Director’s Decision was confirmed.  The Board held that the applicant has never been a member of the BNP.  It found that neither the applicant nor his family members were ever harmed in the past because of their political views.  The applicant did not have to flee his country for his safety.  The applicant was not of any adverse interest to the Awami League.  There was no real risk of harm if the applicant returns to Bangladesh.

V.  Decisions of the Judges

9.  In his decision dated 4 November 2020, Judge Pang held that the applicant’s case was rejected by the Board due to the major gaps, inconsistencies and contradictions in his evidence.  

10.  In his decision dated 19 August 2021, Judge Chan held that the applicant’s statement that he never received the decision in his mail was not accepted as the court record showed that the decision was sent to the applicant’s last known address without being returned undelivered.  Importantly, the applicant did not state any proper grounds of appeal nor point to any particular error of the Board. 

VI.  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.

VII.  Analysis

1)  Length of delay and reasons for the delay

12.  The applicant was late by over two months in lodging his appeal.  Due to the serious delay, the applicant must satisfy the Court that his intended application has a real prospect of success before extension of time will be granted: Re Ansar Muhammad [2018] HKCA 227.

13.  In the applicant’s summons and affirmation, he stated that his court documents were lost in the post and he only got them through searching the court files.  This was not raised before Judge Chan but for the first time on appeal.  We do not accept his explanation.  In any event, we will focus on the merits of the intended application.

2)  Prospect of the intended appeal

14.  In his written submissions, the applicant provided general non-refoulement case authorities and statutory reference without specifying how these rules relate to his case.  The applicant failed to put forward proper grounds of appeal.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

15.  Judge Pang 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 Judge Pang, the intended appeal cannot have any prospect of success.  As the intended appeal is unarguable, it would be futile to give an extension of time. 

VIII.  Disposition

17.  Accordingly, we dismiss the applicant’s summons dated 26 August 2021.