RE KONOK AHMED KHAN alias AHMED ROCHY

CAMP 448/2022, [2023] HKCA 908

On Appeal From [2022] HKCFI 875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 448 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2160 OF 2018)

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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.  On 8 October 2018, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 2160/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 2 October 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 10 May 2017 rejecting his non‑refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave on 25 March 2022.

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 (i.e. by 8 April 2022). Being out of time for over six weeks, the applicant took out an application on 24 May 2022 before the Judge requesting an extension of time to appeal. The Judge on 26 October 2022 rejected the applicant’s application for extension of time to appeal.

3.  Under Order 59, rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal (i.e. 2 November 2022). On 27 October 2022, 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 submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.  Briefly stated, the applicant is a Bangladesh national. He repeatedly entered Hong Kong illegally using false identities. He last arrived in Hong Kong on 20 August 2006 and was arrested by the Police on 12 April 2013. He raised his non‑refoulement claim on 3 March 2014 alleging that he would be harmed or killed by the Awami League for having political disputes with them and he was a witness to a murder. He is a supporter of the rival Bangladesh Nationalist Party (‘BNP’).

3)  The Director’s Decision

6.  The Director decided against the applicant’s non‑refoulement claim. 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 (‘the Director’s Decision’).

4)  The Board’s Decision

7.  An oral hearing was conducted by the Board on 15 May 2018. The Board dismissed the applicant’s appeal and the Director’s Decision was confirmed. The Board held that after carefully considering all the evidence in the case, it formed the view that the applicant was not a credible witness. In particular, significant parts of his evidence was vague and lacking in detail, and was also contradictory and inconsistent. The Board found that the applicant was only an ordinary member of his political group and unlikely to be targeted by the Awami League. The fact that the applicant claimed that he was not arrested by the Bangladeshi Police and he was able to leave Bangladesh without incident was highly relevant to contradict his claims that the authorities were pursuing him or will harm and kill him. There was no real risk that the applicant would be harmed if he was to return to Bangladesh.

5)  Decisions of the Judge

8.  The applicant did not appear before the Judge. The Judge held that the applicant had provided no proper ground for his intended judicial review. The Board did not commit any error of law or procedural unfairness.

9.  In his decision dated 26 October 2022, the Judge held that the applicant’s explanation for his delay was not acceptable. The Form CALL-1 was sent to the applicant’s last reported address without being returned undelivered. He had provided no valid reason for his delay other than alleging that he was sick and unable to leave home without any further details such as any medical report. The Judge held that significantly, the applicant did not put forward any proper grounds of appeal or particulars of error in the Judge’s decision. There was no prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6)  Legal principles

10.  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

11.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days from the Judge’s decision to file an appeal. The Form CALL-1 decision was handed down on 25 March 2022. The deadline for the appeal was 8 April 2022. The applicant was over six weeks late when he filed his extension of time to appeal application on 24 May 2022. The applicant made a bare assertion that he did not receive the decision, but the Court record showed that the decision was mailed to him on the same date without being returned undelivered.

12.  The present summons for a renewed application for extension of time to appeal was filed on 27 October 2022. He stated in his summons that he did not get the ‘high court letter’ on time. This is presumably a reference to the Form CALL‑1. His written submissions merely referred to the political situation in Bangladesh. These are not proper explanations for the delay.

(2)  Prospect of the intended appeal

13.  The applicant’s summons and affirmation provided no grounds of his intended appeal. In the applicant’s written submissions, he repeated factual matters that he had raised before.

14.  In our judgment, the applicant does not have any prospect of success in his intended appeal. The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant extension of time for appeal. The applicant has not identified any error of law or procedural unfairness in the decision of the Judge.

8)  Disposition

15.  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 27 October 2022.