RE NAHID MOHAMMAD

CAMP 309/2019

[2020] HKCA 735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 309 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1006 OF 2017)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  By way of a decision set out in Form CALL-1 by Deputy Judge Bruno Chan (“DHCJ Chan”) dated 28 June 2019 [2019] HKCFI 1069 (“DHCJ Chan’s Decision”), DHCJ Chan dismissed the applicant’s application for leave to apply for judicial review of the decision the Torture Claims Appeal Board (“the Board”) dated 7 April 2017 (“the Board’s Decision”).

2.  In the Board’s Decision, the Board upheld decisions of the Director of Immigration (“the Director”) dated respectively 21 March 2016 (“the Director’s First Decision”) and 9 March 2017 (“the Director’s Second Decision”) dismissing the applicant’s non-refoulement protection claim.

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “Director’s Decisions”.

4.  On 18 April 2017, the applicant filed a Form 86 to challenge the Board’s Decision by way of judicial review under HCAL 142/2017.  On 25 August 2017, DHCJ Woodcock refused to grant leave to the applicant.

5.  On 4 December 2017, without appealing against DHCJ Woodcock’s decision, the applicant filed another Form 86 to challenge the Board’s Decision by way of a new application for leave to apply for judicial review under HCAL 1006/2017.

6.  By way of DHCJ Chan’s Decision, DHCJ Chan refused to grant leave to the applicant.

7.  On 8 August 2019, the applicant took out a summons under HCAL 1006/2017 seeking to appeal DHCJ Chan’s Decision out of time.  Under Order 53, rule 3(4) of the Rules of the High Court (“the RHC”), the deadline for the applicant to appeal DHCJ Chan’s Decision expired on 12 July 2019.  He was thus around three weeks out of time.

8.  On 25 November 2019, DHCJ Chan refused the applicant’s application to appeal out of time (“DHCJ Chan’s Extension of Time Decision”) [2019] HKCFI 2733.

9.  On 10 December 2019, the applicant renewed his application for extension of time to appeal before this Court.

Background

10.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 24 September 2013 and was arrested by the police on the 27 September 2013.  He lodged a claim for non-refoulement protection on the ground of risk of cruel, inhuman or degrading treatment or punishment on 29 September 2013.  His claim was later taken as a non‑refoulement claim upon the implementation of unified screening mechanism.

11.  The factual background was set out comprehensively at paragraph 6 of the Director’s First Decision and paragraphs 24 - 64 of the Board’s Decision. In particular, paragraph 24 of the Board’s Decision provides an overview of the events that caused the applicant’s fear.

12.  Briefly stated, the applicant’s non-refoulement claim was made on the basis that he would be harmed or killed by members of Awami League (“AL”).  The applicant claimed that the AL was in power in his home country.  The members of AL constantly oppressed the members of Bangladesh Nationalist Party (“BNP”), to which the applicant belonged.  The AL and its affiliated student organization kept harassing and threatening the applicant for his support of the BNP.  They attacked his father, destroyed his father’s shop, tortured him on two occasions and burnt down his family house in 2009.  His father and brother had since then gone missing.  The police refused to investigate these matters as AL was in power and for the same reason, the applicant was unable to fled to other areas.  Out of fear, he left for Hong Kong.

The Director’s Decisions and the Board’s Decision

13.  By way of the Director’s Decisions, the Director assessed and dismissed the applicant’s claim.  The Director’s First Decision assessed the BOR 3 risk[1], persecution risk[2] and torture risk[3].  The Director’s Second Decision covered the assessment of his claim on BOR 2 risk[4].

14.  The applicant lodged an appeal to the Board against the Director’s Decisions.  An oral hearing was held on 1 March 2017.  After considering the documents and the applicant’s oral evidence, the Board found that the applicant’s claim failed to satisfy the requisite elements of establishing a non-refoulement claim.  The Board found that the applicant’s credibility was questionable in relation to his evidence on the key events (paragraphs 65 - 83 of the Board’s Decision).  The Board also concluded that there was no reasonable likelihood of the applicant being persecuted upon refoulement to his home country (paragraph 85 of the Board’s Decision).  As a result, the Board dismissed his appeal.

The first leave application – HCAL 142/2017

15.  As mentioned before, on 18 April 2017, the applicant filed an application for leave to apply for judicial review against the Board’s Decision under HCAL 142/2017.  The leave application was refused by DHCJ Woodcock on 25 August 2017.  She was satisfied that there was no evidence of procedural unfairness, error of law or a failure to adhere to a high standard of fairness on the part of the Board.

The second leave application – HCAL 1006/2017

16.  The applicant did not first appeal against the decision of DHCJ Woodcock but took out a second application for leave to apply for judicial review against the Board’s Decision on 4 December 2017 under HCAL 1006/2017[5].

17.  His eight grounds for judicial review on procedural impropriety / unfairness and irrationalityare substantially the same as the ones he relied on in his first leave application before DHCJ Woodcock.

DHCJ Chan’s Decision

18.  A hearing for the applicant’s second leave application was fixed on 3 April 2019 but the applicant did not show up.  After considering all the documents available to him, DHCJ Chan dismissed the second leave application on 28 June 2019.  He considered that the principle of res judicata applied and it was an abuse of process for the applicant to re-litigate his case by bringing a second leave application for judicial review in respect of the same decision of the Board.

Extension of time before DHCJ Chan

19.  On 8 August 2019, the applicant took out a summons seeking to appeal DHCJ Chan’s Decision out of time. In his affirmation filed on the same date, he explained that he did not get the decision on time and he was advised that there was a good ground of appeal. However, he did not provide particulars on the asserted good ground.

20.  By way of DHCJ Chan’s Extension of Time Decision, DHCJ Chan refused to grant extension of time on the basis that the applicant failed to provide a good reason for the delay and that there was no prospect of success in his intended appeal.

Renewed extension of time before this Court

21.  On 10 December 2019, the applicant renewed his application for extension of time before this Court.  He did not provide any explanation for the delay nor did he advance any grounds for the intended appeal.  He also listed DHCJ Chan’s Extension of Time Decision as decision under challenge.

22.  On 13 December 2019, the Registrar of Civil Appeals gave directions to the applicant for the conduct of this summons.  The Registrar pointed out that this application was lodged against DHCJ Chan’s Decision by which the second leave application was struck out as an abuse of process, citing Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763.  The Registrar directed that an appeal lodged against the decision made in the second application for leave to apply for judicial review is an abuse of process of the court and such appeal is liable to be struck out.  He further directed that the applicant’s summons was bound to be dismissed and if the applicant did not agree that the summons was bound to be dismissed, he should lodge his written submissions on or before 30 December 2019.  The applicant did not lodge his written submissions as directed.

Legal principles

23.  Whilst it is technically possible to appeal against a lower court’s decision in refusing an extension of time for appealing, it is more straightforward and economical to renew the application for extension of time before the Court of Appeal: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application against the substantive decision of the deputy judge, ie, DHCJ Chan’s Decision.

24.  As mentioned, pursuant to Order 53, rule 3(4) of the RHC, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted.

25.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal, see: Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Re Ansar Muhammad [2018] HKCA 227; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

Discussion

26.  In our view, the present application is doomed to fail.

27.  The applicant did not disclose to DHCJ Chan a previous unsuccessful application for leave to judicial review against the same Board’s Decision before DHCJ Woodcock in either his Form 86 or supporting affirmation.  This amounts to an abuse of process and thus the intended appeal should be struck out: Bepary Shahealom, per Lam VP at [22]; Khan Kamran v Torture Claims Appeal Board [2020] HKCA 380; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1].  More so, this also applies to an application to appeal out of time.  On this basis alone, this application should be dismissed.

28.  In any event, the applicant did not provide any explanation for his delay of more than three weeks.  Nor did he satisfy this Court that his intended appeal has real prospect of success as he did not advance any ground of appeal.  There is simply no ground for this Court to intervene DHCJ Chan’s Decision.

29.  In the circumstances, the applicant’s intended appeal has no merits at all and it would be futile to extend time.  Accordingly, we dismiss the applicant’s summons of 10 December 2019.