RE RASEL

CAMP 148/2019

[2019] HKCA 1245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 148 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 115 of 2017)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  By summons filed on 2 July 2019, the applicant applied for leave to appeal against the order of Deputy High Court Judge Lung (“DHCJ Lung”) dated 19 June 2019. By that order, DHCJ Lung refused to extend the time for the applicant to appeal the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 20 October 2017 refusing to give leave to apply for judicial review. We believe the applicant is in fact seeking leave from this Court to appeal out of time against the Judge’s decision of 20 October 2017, and we have treated his summons as a renewed application for leave to appeal out of time.

2.  The applicant had filed an affirmation, and also lodged a written submission in support of his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 30 March 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 19 February and 28 November 2016 rejecting his non-refoulement claim.

5.  The applicant is a Bangladeshi national. He entered Hong Kong illegally and was arrested by the police on 29 December 2013. He later raised a non-refoulement claim based on his fear of: (1) being harmed or killed by a member of parliament surnamed Haque and his supporters who were of the Awami League because he supported the student wing of the Bangladesh Nationalist Party; and (2) being arrested, tortured and imprisoned by the police in connection with a case of assaulting police officers that happened during a protest in May 2013.  The details of the applicant’s claim had been set out in the decisions of the Director and the Board and summarised by the Judge in the Form CALL-1 dated 20 October 2017 at [8] to [13].  We will not repeat them.     

6.  By his two decisions, the Director rejected the applicant’s claim.  The first decision covers the torture risk[1], BOR 3 risk[2], and persecution risk[3] ground, and the second decision covers the BOR 2 risk[4] ground.

7.  The applicant’s appeal to the Board was heard on 14 December 2016, during which the applicant had answered questions put by the Board.  By its decision dated 30 March 2017, the Board dismissed the appeal.  

8.  On 3 April 2017, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He raised a total of eight grounds in support of the application. At his request, the application was listed for an oral hearing before the Judge.  By the Form CALL-1 dated 20 October 2017, the Judge refused to grant leave to apply for judicial review and dismissed the application. 

9.  The 14-day period[5] for the applicant to appeal the decision of the Judge expired on 3 November 2017. On 28 January 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  DHCJ Lung heard the application on 14 March 2019, and by his decision handed down on 19 June 2019 dismissed the application.  On 2 July 2019, the applicant filed the present summons.

10.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

11.  By the time the applicant filed the summons in the lower court for leave to appeal out of time, he was more than 14 months late.  This is a serious delay.  In the supporting affirmation filed in the court below, the applicant explained that he did not receive the Form CALL-1, and was not aware of the dismissal of his application until being informed by the immigration officers.  It appears he had moved but he did not inform the court of his new address.  We agree with DHCJ Lung’s observation that it was the applicant’s responsibility to update the Court of his correspondence address, and he had given no satisfactory reason for his failure to do so.  However, what is more important is the prospect of the applicant’s intended appeal.  

12.  The applicant set out two grounds of appeal in the affirmation filed in this application.  They are: (1) DHCJ Lung was wrong in law in holding there was no sate acquiescence or involvement; and (2) DHCJ Lung failed to provide detailed reason for his decision. 

13.  In his written submission, the applicant advanced two further arguments.  The first is that high standards of fairness are required considering that the applicant’s life is in jeopardy, his fundamental right not to be subjected to torture is at stake and the decision has the effect of finally disposing of the applicant’s claim rendering him liable to be removed.  Secondly, it was argued that at common law, minimum standards of procedural fairness are required in decision making and decision maker is under a duty to act fairly.

14.  In our view, the applicant’s intended appeal has no prospect of success for several reasons.  The two grounds of appeal set out in the affirmation are clearly unarguable.  First, the reference to DHCJ Lung is erroneous since it was the Judge, not DHCJ Lung, who refused his application for leave to apply for judicial review.  Second, the first ground is totally misplaced.  The Judge did not refer to state acquiescence in her reasons refusing leave to apply for judicial review.  Third, in light of the reasons provided by the Judge in the Form CALL-1, the second ground of appeal simply has no merit.  

15.  As to the written submission, it only contains general legal propositions.  It fails to show how the legal propositions relate to the applicant’s case.  While it complains that the Board failed to scrutinize the Director’s decision and ought to have considered matters such as the country of origin information, no particulars are given.  They do not amount to viable grounds of appeal.   

16.  Given that the intended appeal is unarguable, it would be futile to give leave to appeal out of time. Accordingly, we dismiss the applicant’s summons filed on 2 July 2019.

17.  Since the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.