RE HOSSAIN BELAYET

CAMP 7/2020

[2020] HKCA 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO.738 of 2018)

__________________________

__________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  By summons filed on 9 January 2020, the applicant applied for leave to appeal against the decision of Deputy High Court Judge Bruno Chan (“DHCJ Chan”) dated 6 January 2020[1]. By that decision, the DHCJ Chan refused to extend the time for the applicant to appeal the decision of Deputy High Court Judge Josiah Lam (the “Judge”) given on 23 September 2019 refusing to give leave to apply for judicial review. We believe the applicant is in fact seeking permission from this Court to appeal out of time against the Judge’s decision of 23 September 2019, instead of the decision of DHCJ Chan as stated on the summons. We have therefore treated the summons as a renewed application for extension of time to appeal against the decision of 23 September 2019.

2.  The applicant had filed an affirmation, and also lodged a written submission in support of his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the affirmation and the written submission filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 16 April 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 25 January 2017 rejecting his non-refoulement claim.

5.  The applicant is a Bangladeshi national. He entered Hong Kong illegally and was arrested by the police on 20 September 2013.  He later raised a non-refoulement claim based on his fear of being harmed or killed by supporters of the Awami League (“AL”) and its student wing, the Bangladesh Chhatra League (“BCL”) because he was a member of the rivalry party, Bangladesh Islami Chhatra Shibir (“BIC”), which was the student wing of Jamaat-e-Islami (“JI”), and he had refused to join BCL. The details of the applicant’s claim had been set out in the decisions of the Director and the Board and summarised by the Judge in the Form CALL-1 dated 23 September 2019 at [2] to [8][2]. We will not repeat them.     

6.  By his decision, the Director rejected the applicant’s claim on the torture risk[3], BOR 3 risk[4], persecution risk[5] and BOR 2 risk[6] grounds.

7.  The applicant’s appeal to the Board was heard on 6 February 2018.  By its decision dated 16 April 2018, the Board dismissed the appeal.  Principally the Board found the applicant’s claim inconsistent and unconvincing and he was not a truthful witness. The Board considered that the applicant failed to establish a real chance that he would suffer any harm as claimed if he were to return to Bangladesh and that he did not come within any of the applicable grounds.

8.  On 27 April 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He raised a total of four grounds in support of the application.  At his request, the application was listed for an oral hearing on 7 September 2018, but the applicant did not attend the hearing.  On 23 September 2019, the Judge refused to grant leave to apply for judicial review and dismissed the application. 

9.  The 14-day period[7] for the applicant to appeal the decision of the Judge expired on 7 October 2019. On 15 October 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time by 8 days.  DHCJ Chan held an oral hearing on 29 November 2019.  By his decision handed down on 6 January 2020, he refused the application.  On 9 January 2020, the applicant filed the present summons.

10.  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) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: 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, 22.01.2016). 

11.  By the time the applicant filed the summons in the lower court for leave to appeal out of time, he was late by eight days.  It is not a serious delay. The applicant explained that he was hospitalised at the time.  Like DHCJ Chan, we are prepared to accept the explanation for the delay, which was supported by medical documents.  DHCJ Chan refused the application because the applicant did not provide any proposed grounds for his intended appeal, or identify any error in the Judge’s decision, despite being given the opportunity to do so at the hearing on 29November 2019. 

12.  In the present application, the applicant also did not provide any ground of appeal in the summons or the supporting affirmation.    

13.  In his written submission, the applicant argued that: (1) high standards of fairness are required considering that his life is in jeopardy, his fundamental right not to be subjected to torture is at stake, and the decision has the effect of finally disposing of his claim rendering him liable to be removed; (2) the Board acted in a procedurally unfair manner in dealing with his case and did not properly assess his credibility; (3) an administrative body’s decision could be set aside if it is Wednesbury unreasonable; and (4) under section 37ZT of the Immigration Ordinance, Cap. 115, the Board in dealing with late filing of notice of appeal may consider the reasons stated in the application and the accompanying supporting documents, as well as any other relevant matters.  

14.  We are of the view that these arguments do not constitute viable grounds for appealing the Judge’s refusal to give leave to apply for judicial review.  The 1^st, 3^rd and 4^th arguments are general legal propositions and assertions.  The submission does not show how these legal propositions relate to the applicant’s case. In fact, the 4^th submission is clearly irrelevant since the applicant’s appeal to the Board was made within the time limit. As to the 2^nd point which complains that the Board acted unfairly, it is a mere assertion with no particulars given.     

15.  In the circumstances, the intended appeal has no prospect of success.  This being the case, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 9 January 2020.