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CAMP 397/2021
[2022] HKCA 252
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 397 OF 2021
(ON AN INTENDED APPEAL FROM HCAL 2912/2018)
________________________
| RE: |
UDDIN MOHAMMED NAZIM |
Applicant |
________________________
Before: Hon Kwan VP and Barma JA in Court
Date of Judgment: 25 February 2022
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of DHCJ P Li (“the Judge”) dated 7 April 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 13 December 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”) and the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 6 December 2018 (“the Board’s Decision”) dismissing his appeal from the Director’s Decision.
Background
2. The applicant is a national of Bangladesh. He entered Hong Kong illegally on 11 June 2015, was subsequently arrested and handed over to the Immigration Department on 22 June 2015. The applicant thereafter lodged a non-refoulement claim on 23 June 2015.
3. The applicant’s claim was based on a fear of being harmed or killed by Awami League members by reason of a land dispute. The details of the applicant’s claim have been summarised by the Judge at [2] to [12] of his decision (“the CALL-1 Form”)[1].
4. By a Notice of Decision dated 13 December 2016, the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2” risk[4] and the BOR 3 risk[5].
5. The applicant appealed to the Board. After a hearing on 6 September 2018, the Board dismissed the appeal on 6 December 2018. The Board’s Decision covered all four grounds for non-refoulement protection. The Board was of the view that there was little or no risk of harm should the applicant be refouled, which in any event would be reduced by means of internal relocation.
The Judge’s decision
6. The applicant filed a Form 86 on 19 December 2018 seeking to judicially review the Director’s and the Board’s Decisions, but did not put forward any grounds for judicial review.
7. After summarizing the facts and background of the case and giving due consideration to the Director’s and the Board’s Decisions, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [17] to [21] of the CALL-1 Form:
“17. The applicant filed the leave application for judicial review on 19/12/2018. In his affirmation in support, he did not point out any specific error in the decision of the TCAB or the Director.
18. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB and the Director. In general, this court would not interfere.
19. The adjudicator had carefully analysed the evidence of the applicant in the oral hearing and the evidence in the appeal bundle. Her findings were logical. I agree with them.
20. In my judgment, there is no error of law or procedure. The decisions of the TCAB is reasonable.
Conclusion
21. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.”
The present application for extension of time to appeal
8. The applicant’s address as stated in his Form 86 was in Leung Uk Tsuen, Yuen Long. On 5 October 2020, the applicant informed the court by letter that his new address was in Yau Uk Tsuen, Pat Heung, Yuen Long (“YUT Address”).
9. According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the YUT Address on 7 April 2021, and were not returned undelivered.
10. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. According to Order 59 rule 3(1), an appeal to this court must be brought by motion in the form of a Notice of Appeal.
11. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 7 April 2021. He did however take out a summons on 23 April 2021 in the Court of First Instance seeking an extension of time to appeal, in which he simply stated that he wished to challenge the Judge’s decision. In the summons, his address was stated to be the YUT Address.
12. The applicant’s application to appeal out of time was dismissed by the Judge on 9 September 2021[6].
13. By a summons filed on 20 September 2021, the applicant renewed his application for an extension of time to appeal before this court. In the summons, the applicant, for the first time, stated that he did not “get letter” (which we take to be the sealed order of the Judge dated 7 April 2021 and the CALL-1 Form) and thus he did not lodge the intended appeal in time. It is noted that in the summons before this court, the applicant stated his address to be in Ha Che, Pat Heung, Yuen Long (“HC Address”), and not the YUT Address.
14. In his written submissions dated 4 October 2021, the applicant repeated his fears and alleged risk of harm should he be refouled. He further claimed he did not receive the letter of the court dated 7 April 2021, which enclosed the Judge’s order and decision of that date.
Discussion
15. Having considered the papers and the applicant’s written submissions, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
16. The applicant alleges that he did not receive the CALL-1 Form or the Judge’s sealed order within 14 days of the decision.
17. The applicant’s self-declared address at the time he applied for extension of time before the Judge was the YUT Address, which is also the address to which the CALL-1 Form and order had been sent. The court’s letter dated 7 April 2021 as well as its enclosures were in fact exhibited by the applicant to his affirmation filed in support of his summons dated 23 April 2021. In his application for extension of time before the Judge, the applicant did not allege, as he does now, that he did not receive the court’s letter, the CALL-1 Form and the order.
18. In our view, it would appear that the applicant had only moved out of the YUT Address sometime after his application for extension of time in the court below. It is also clear from the documents filed with the court that the applicant’s address was the YUT Address at the time the CALL-1 Form and the Judge’s order were sent to him by post at that address. There is no question in our mind that the applicant had received these documents within the period during which he should have lodged his intended appeal.
19. In the circumstances, we reject the applicant’s explanation for his delay in lodging his intended appeal.
20. We have nonetheless proceeded to consider the merits of the intended appeal.
21. The applicant did not, in the Form 86 or the accompanying affirmation, point to any error of law, procedural unfairness or irrationality in the Director’s or the Board’s Decisions. The applicant has not condescended to any particulars as to on what basis these Decisions were said to be wrong, unfair or Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
22. Further, it is well-established, that it is necessary for an intending appellant to identify errors in the judgment below. The applicant has failed, in his written submissions or elsewhere, to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
23. For these reasons, we do not see any prospect of success in the intended appeal. This court will not grant an extension of time for a hopeless appeal. The summons filed on 20 September 2021 is accordingly dismissed.
| (Susan Kwan) |
(Aarif Barma) |
| Vice-President |
Justice of Appeal |
The applicant acting in person
[1] [2021] HKCFI 881
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2021] HKCFI 2620
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