RE MD SERAJUL MUNIR alias MUNIR ABMS

CAMP 142/2024, [2025] HKCA 384

On Appeal From [2023] HKCFI 2698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 142 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 1225 OF 2019)

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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 7 May 2019, the applicant issued her application for leave for judicial review by Form 86 in HCAL 1225/2019.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 2 May 2019 which confirmed the Director’s Decision of 28 June 2018.  Deputy High Court Judge KW Lung refused to grant leave for judicial review on 7 November 2023.

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. Being out of time for about four months, the applicant took out an application on 21 March 2024 before the Judge requesting an extension of time to appeal. The Judge on 14 June 2024 rejected the applicant’s application for extension of time to appeal.

3.  On 31 July 2024, 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.  The applicant is a Bangladesh national.  He entered Hong Kong illegally on 5 November 2016.  On 11 April 2017, he surrendered to the Immigration Department.  The applicant raised a non-refoulement claim on 10 August 2017 alleging that if he returned to Bangladesh he would be harmed or killed by members of the Awami League as, due to the applicant’s political involvements, they demanded money from the applicant, and the applicant had no means to pay[1].

6.  The background facts have been summarized in the decision of the Judge at [4] to [8].

3)  The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 28 June 2018.   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[2] (‘the Director’s Decision’).

4)  The Board’s Decision

8.  The applicant appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)[3].  After a hearing held on 17 April 2019, the Board dismissed the applicant’s appeal on 2 May 2019 (‘the Board’s Decision’).

9.  The Board’s finding is summarized in the decision of the Judge at [11]-[13].

5)  Decisions of the Judge

10.  In his decision dated 7 November 2023, the Judge held that for reasons already delivered by the Board, it did not accept that facts as propounded by the applicant before it.  There was no valid ground for the applicant to challenge the Board’s Decision[4].  There was no error of law or procedural unfairness[5].  

11.  In his decision dated 14 June 2024, the Judge held that the applicant was deemed to have received the Court’s decision[6] since the decision was sent to the applicant’s last known address without being returned undelivered. The applicant provided no valid reason to challenge the Board’s Decision.  The application for extension of time for appeal was dismissed[7].

6)  Legal principles

12.  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

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

14.  The Form CALL-1 decision was handed down on 7 November 2023.  The applicant was about four months late when he filed his extension of time to appeal application on 21 March 2024.  The applicant merely stated that he did not receive the Court’s decision without further explanation[8].

(2)  Prospect of the intended appeal

15.  In the applicant’s summons, the applicant provide no grounds of appeal.  In the applicant’s affirmation, he stated that the High Court did not hear him and did not give him an opportunity to explain his case, but according to the Judge’s decision at [2], it was the applicant who did not ask for a hearing.  The applicant’s written submission consists entirely of general statements of law, bald assertions of procedural unfairness such as lack of legal and language assistance albeit that he was provided with duty lawyer assistance and also interpreter service before the Director and also interpreter service before the Board.

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

17.  Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

18.  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 31 July 2024.