RE JAHURUL

CAMP 129/2023, [2024] HKCA 830

On Appeal From [2018] HKCFI 1469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 129 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 160 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court)  :

1)  Renewed application for extension of time to appeal

1.  On 5 February 2018, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 160/2018.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 1 February 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’)  dated 11 July 2017 rejecting his non-refoulement claim.  Deputy High Court Judge Josiah Lam refused to grant leave on 9 July 2018.

2.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 23 July 2018).  Being out of time for over four years and three months, the applicant took out an application on 26 October 2022 before the Court requesting an extension of time to appeal.  Deputy High Court Judge Bruno Chan on 23 March 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 29 March 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

4.  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 submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.  Briefly stated, the applicant is a Bangladesh national.  He entered Hong Kong illegally via the Mainland on 18 February 2016.  He raised his non-refoulement claim on 23 June 2016[1] alleging that he would be harmed or killed by :

(1)  Politically related people of the Awami League;

(2)  A person called Ismail as the applicant witnessed Ismail killing another person; and

(3)  The Bangladesh police as he was being framed for various accusations and charges[2].

3)  The Director’s Decision

6.  The Director decided against the applicant’s non-refoulement claim on 11 July 2017. The Decision covered Hong Kong Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

4)  The Board’s Decision

7.  An oral hearing was conducted by the Board on 24 October 2017.  The Board dismissed the applicant’s appeal and the Director’s Decision was confirmed.  The Board held that the applicant was not a witness of truth and that he has fabricated claims relating to his political opinion and activities[4].  The applicant claimed to be a member of a political organization that only students may join and yet he was not a student at the relevant time according to his evidence.  He also has little knowledge of what such political organization does[5]. It was incredible that with the limited knowledge of his political group and his low level of involvement he would have been granted an official role[6]. There were many inconsistencies when the applicant described the number of times he was attacked, or whether he went to a hospital or a clinic to treat his injury[7].  The applicant’s story of what happened on one election day turns out to be untrue as according to independent information the Board found out that the day the applicant mentioned had no election[8].  There was no real risk of the applicant suffering from any harm if he returns to Bangladesh as the fundamental basis of his claim was not accepted[9].

5)  Decisions of the Judge

8.  In his decision dated 9 July 2018, the Judge held that the applicant’s complaint of the Board serving him the bundle late was without basis as it was in fact served in time according to relevant guidelines[10]. The Judge held that the applicant’s claim that he had difficulty retrieving documents in Bangladesh as evidence has no substance when the applicant did not explain what document he wanted to obtain or how relevant such document was[11]. There was no error of law or procedural unfairness[12].

9.  In his decision dated 23 March 2023, the Judge held that the applicant’s explanation for his substantial and inordinate delay of more than four years was not acceptable.  The Form CALL-1 was sent on the same day to the applicant’s last known address without being returned.  The Judge held that importantly, the applicant did not put forth any valid grounds of appeal.  There was no prospect of success in the intended appeal.  The application for extension of time for appeal was refused.

6)  Legal principles

10.  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

11.  Under Order 53, rule 3(4)  of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge. 

12.  The Form CALL-1 decision was handed down on 9 July 2018.  The deadline for the appeal was 23 July 2018.  The applicant was about four years and three months late when he filed his extension of time to appeal application on 26 October 2022.  The applicant made bare assertion in his affirmation before the Judge by simply saying that he was sick and failed to appeal within time but without providing any further details in support[13].

(2)  Prospect of the intended appeal

13.  In the applicant’s summons, the applicant stated that he did not get the High Court letter on time.  The applicant’s affirmation stated that he did not agree with the High Court decision.  In the applicant’s written submission, he repeated the factual background of his case, then he went on to describe the levels of tribunals and courts that have dismissed his claim, and he asks for asylum status.

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

15.  The 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, we dismiss the applicant’s summons filed on 29 March 2023.