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CAMP 568/2021
[2022] HKCA 705
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 568 OF 2021
(ON AN INTENDED APPEAL FROM HCAL 1775 OF 2021)
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MAMUN ABDULLAH AL |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
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Before: Hon G Lam and Chow JJA in Court
Date of Written Submissions: 31 December 2021
Date of Judgment: 30 May 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 17 December 2021, the Applicant took out a summons to apply for an extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) dated 7 July 2020 refusing to grant leave to the Applicant to apply for judicial review.
2. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
3. The Applicant is a national of Bangladesh. He came to Hong Kong on 29 September 2015 illegally, and on the same day was arrested by the Police. On 3 October 2015, he made his non refoulement claim by written representation, claiming that if refouled, he would be harmed or even killed by the union president of the local Awami League and his people. Details of the Applicant’s claim and background were summarised by the Judge at §§1-6 of the CALL-1 Form.
4. By a Notice of Decision dated 29 December 2017, the Director of Immigration (“the Director”) dismissed the Applicant’s non-refoulement claim on the following applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
5. The Applicant appealed the Director’s decision to Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”). On 24 August 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”).
6. The Board found that the Applicant was not a witness of truth and rejected his evidence concerning his association with the BNP and his disputes with the Awami League (see Board’s Decision at §64). The Board concluded that he had failed to establish any of the risks claimed and would not face any form of harm upon being refouled to Bangladesh.
THE JUDGE’S DECISION
7. On 29 August 2018, the Applicant filed his Form 86 to apply for leave to apply for judicial review of the Board’s Decision.
8. On 7 July 2020, the Judge refused to grant leave to the Applicant to apply for judicial review. At §§14-16 of Form CALL-1, the Judge stated as follows:
“14. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.
15. There is no reason that the Board’s Decision should be intervened by the court.
16. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”
9. On 4 November 2021, the Judge dismissed the Applicant’s summons of 10 September 2020 seeking an extension of time to appeal against his earlier order of 7 July 2020.
THIS APPLICATION
10. By a summons taken out on 17 December 2021, the Applicant applied for an extension of time to appeal against the decision of the Judge dated 7 July 2020. In his supporting affirmation filed on the same date, the Applicant merely stated that the Court had dismissed his application for extension of time.
11. In his 2-page written submissions dated 31 December 2021, the Applicant stated that he came to Hong Kong to seek asylum. He complained that the decisions of the Director and the Board were wrong, and suggested that they should go to Bangladesh to see the “real picture”.
DISCUSSION
12. In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
13. The prospect of success of an intended appeal is important. The court will not grant extension of time for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
14. The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.
15. The Applicant has not pointed to any error in the Judge’s decision dated 7 July 2020, or raised any viable ground of appeal against the Judge’s decision. There is no prospect of success in the Applicant’s intended appeal.
DISPOSITION
16. The application for extension of time to appeal is refused, and the Applicant’s summons of 17 December 2021 is dismissed.
(Godfrey Lam)
Justice of Appeal
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(Anderson Chow)
Justice of Appeal
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The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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