RE RIGAN MITRA

CAMP 95/2019

[2019] HKCA 981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 95 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1063 of 2017)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 7 December 2018 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 2 April 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 and the affirmation 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 21 July 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 2 April 2015 and 20 June 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 21 May 2009. He later raised a non-refoulement claim based on his fear of being harmed or killed by the supporters of the Purba Bangla Sarbohara Party. 

6.  By his two decisions, the Director rejected the applicant’s claim.  The first decision covers the torture risk[1], BOR 3 risk[2], and persecution risk[3] ground, and the second decision covers the BOR 2 risk[4] ground.

7.  The applicant’s appeal to the Board was heard on 4 January 2017.  By its decision dated 21 July 2017, the Board dismissed the appeal.  

8.  On 28 July 2017, the applicant filed a Form 86 under action no. HCAL 465 of 2017 to apply for leave to judicially review the Board’s decision.  He raised a total of eight grounds in support of the application.  At his request, the application was listed for an oral hearing before Deputy High Court Judge Woodcock.  The applicant, however, did not attend the hearing.  By her decision dated 4 December 2017, Deputy High Court Judge Woodcock dismissed the application.  There was no appeal against the decision.

9.  On 12 December 2017, the applicant commenced a second application for leave to apply for judicial review under action no. HCAL 1063 of 2017.  He put forward three grounds for seeking relief, which were in essence similar to those he put forward in the previous application.  At his request, the application was listed for an oral hearing before the Judge on 30 August 2018, but the applicant was absent at the hearing.  He later wrote to the Court explaining he had gone to the hospital, and enclosed a medical certificate indicating he was diagnosed to have atypical chest pain. The case was re-listed for hearing, but the applicant was again absent.  He later explained to the Court that he was sick and submitted a medical certificate indicating he had wrist pain.  The Judge did not accept this justified his absence at the rescheduled hearing, and proceeded to consider the application.  By the CALL-1 Form dated 7 December 2018, [2018] HKCFI 2640, the Judge refused to grant leave to apply for judicial review and dismissed the application. 

10.  The 14-day period[5] for the applicant to appeal the decision of the Judge expired on 21 December 2018. On 25 January 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  The Judge heard the application on 22 February 2019, and by his decision handed down on 2 April 2019 dismissed the application.  On 20 May 2019, the applicant filed a summons and an affirmation in this Court to renew his application for leave to appeal out of time.

11.  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). 

12.  By the time the applicant filed the summons in the lower court for leave to appeal out of time, he was late for more than one month.  The delay was not insubstantial.  In the supporting affirmation filed in the court below, the applicant explained that he did not received any letter from the Court and was not aware of the dismissal of his application until being informed by the Immigration Department.  The Judge did not accept the explanation considering that the Form CALL-1 and the Court order were mailed to the address stated in the applicant’s affirmation in support of the Form 86.  We are of the view that the Judge was entitled, on the materials before him, to conclude that the applicant had not provided a satisfactory explanation for the delay.  However, what is more important is the prospect of the applicant’s intended appeal.  

13.  The applicant set out two grounds of appeal in the affirmation filed in this application.  They are: (1) The Judge was wrong in law in holding there was no sate acquiescence or involvement; and (2) the Judge failed to provide detailed reason for his decision.

14.  In his written submission, the applicant advanced two further arguments.  The first is that high standards of fairness are required considering that the applicant’s 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 the applicant’s claim rendering him liable to be removed.  Secondly, it was argued that at common law, minimum standards of procedural fairness are required in decision making and decision maker is under a duty to act fairly.

15.  In our view, the applicant’s intended appeal has no prospect of success for several reasons.  The two grounds of appeal set out in the affirmation are clearly unarguable.  The first ground is totally misplaced.  The Judge dismissed the application for leave to apply for judicial review as being an abuse of the court process since the applicant had previously made a similar application and failed.  The applicant had not raised state acquiescence or involvement as a ground for seeking relief.  Neither had the Judge referred to it in his reasons refusing leave to apply for judicial review.  Further, in light of the reasons provided by the Judge in the Form CALL-1, the second ground of appeal simply has no merit.  

16.  As to the written submission, it only contains general legal propositions.  It fails to show how the legal propositions relate to the applicant’s case.  While it complains that the Board failed to scrutinize the Director’s decision and ought to have considered matters, such as the country of origin information, no particulars are given.  They do not amount to viable grounds of appeal.

17.  Importantly, we are in full agreement with Judge that it was an abuse of court process to bring another application for judicial review after an application for leave to apply for judicial review of the same decision had been dismissed.   

18.  Given that the intended appeal is unarguable, it would be futile to give leave to appeal out of time. Accordingly, we dismiss the applicant’s summons filed on 20 May 2019.

19.  Since the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.