RE MONDAL ENTAJ

CAMP 85/2019

[2019] HKCA 1182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 85 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 692 OF 2017)

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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) :

1)  Renewed application for extension of time to appeal

1.1 On 27 September 2017, the applicant issued his application for leave for judicial review by Form 86.

1.2 The applicant’s intended judicial review was against the Director’s decision and the decision of the Torture Claims Appeal Board (‘the Board’) dated 30 August 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 9 May 2016 rejecting his non-refoulement claim.  The application was filed within time.

1.3 On 5 July 2018, Campbell-Moffat J dismissed the applicant’s application.  

1.4 The applicant was entitled to appeal against the Judge’s refusal as of right.  But if he did not do so within the 14-day period specified by law, he had to obtain an order for extension of time to appeal.  Being about 3 months out of time, the applicant issued an application on 12 October 2018 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 15 March 2019 rejected the applicant’s application.  

1.5 On 9 May 2019, the applicant by summons issued a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paras 3 to 8.

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

2)  Factual background

2. Briefly stated, the applicant is an Indian national.  He entered Hong Kong legally on 12 April 2014.  He overstayed as of 27 April 2014.  He was arrested on 13 May 2014.  He subsequently raised a non-refoulement claim based on his fear that a moneylender would threaten his life if he did not repay a borrowed sum.

3)  The Director’s Decision and the Director’s Further Decision

3.1 The Director decided against the applicant’s non-refoulement claim on 9 May 2016.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

3.2 By a Further Decision of the Director dated 29 December 2016, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant and decided against the applicant.

4)  The Board’s Decision

4. The applicant appealed against the Director’s Decision to the Board on 23 May 2016.  The oral hearing was conducted on 27 January 2017.  The Board dismissed the applicant’s appeal on 30 August 2017.  In gist, the Board found that the alleged risk of harm described by the applicant was very low.

5)  Decisions of the Judge

5.1 The applicant did not request an oral hearing for his application for leave to apply for judicial review.  The matter was considered on paper.  The Judge held that the applicant provided no grounds for review.  No error of law or procedure was found.  

5.2 The applicant was absent from the hearing on 15 March 2019 and the Judge dealt with the application for extension of time on paper and dismissed it.

6)  Legal principles

6. In 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 January 2016), 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) Length of the delay;

(2) Reasons for the delay;

(3) Prospect of the intended appeal;

(4) Prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1) Length of delay and reasons for the delay

7.1 The applicant was more than two months late when he filed summons in the court below for extension of time to appeal. The Judge considered that, in any event, there was no merit in the applicant’s application. No grounds of review were provided by the applicant.

7.2 In our view, the length of delay for his first extension of time to appeal application was not insubstantial. Therefore, the intended appeal must satisfy real prospect of success before an extension of time will be granted: Re Ansar Muhammad [2018] HKCA 227.

(2) Prospect of the intended appeal

7.3 In our judgment, the applicant does not meet that threshold. Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success.

7.4 In the present application, the applicant in his summons merely stated that the decision of the Judge was unfair and unreasonable. He stated that the reason for his late application was because he received the court’s letter late. We are of the view that these are bare allegations unsupported with reason nor evidence. No particulars were provided by the applicant.

7.5 The content of the supporting affirmation of the applicant is generally undecipherable. Trying our best, the applicant seemed to have confused submissions that normally appear in an extension application with submissions that normally appear in a leave to the Court of Final Appeal application. First, the applicant stated that he was applying to the Court of Final Appeal, when in fact he was applying in the Court of Appeal. Second, the applicant stated his case number being ‘120 of 2018’, when in fact it was ‘CAMP 85 of 2019’. Third, he stated that there was some kind of general legal importance for the Court to consider his case on BOR 2, BOR 3, torture risk and persecution risk without any explanation of what he meant.

7.6 The applicant has not identified any error in the decision of the Judge, we are of the view that the intended appeal does not have any prospect of success.

8)  Disposition

8. As the intended appeal is unarguable, it will be futile to grant any extension of time.  Accordingly, we will dismiss the applicant’s summons dated 9 May 2019.