RE JAMAL HOSSIN alias JAMAL HOSSAIN

CAMP 58/2022

[2022] HKCA 946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 58 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2108 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) :

I.  Renewed application for extension of time to appeal

1.  On 3 October 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 20 September 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 15 January 2018 rejecting his non‑refoulement claim.

2.  In his decision of 29 November 2021, Judge KW Lung refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time for 21 days, the applicant took out an application on 5 January 2022 before the Judge requesting an extension of time to appeal. The Judge on 8 February 2022 rejected the applicant’s application.  

4.  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.  On 17 February 2022 (being two days late), the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

5.  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.

II.  Factual background

6.  The applicant is a national of Bangladesh. He entered Hong Kong illegally on 15 February 2015 and was arrested on the same day.  The applicant lodged a non‑refoulement claim on 26 February 2015.  The applicant’s claim is on the basis that he would be harmed or killed by members of the Awami League for refusing to join them.

7.  The details of the applicant’s claim have been summarized by the Judge at [4] and [5] of the CALL‑1 Form.

III.  The Director’s Decision

8.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 15 January 2018.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Hong Kong Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Hong Kong Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

IV.   The Board’s Decision

9.  The applicant appealed against the Director’s Decisions to the Board and attended an oral hearing on 3 September 2018 before the Board.  The Board held that the applicant’s evidence was not credible as it contained inconsistences.  In any event, the Board found that the applicant failed to establish a fear of being harmed or killed by the Awami League and dismissed his appeal against the Director’s Decision on 20 September 2018.

V.   Decisions of the Judge

10.  In his decision dated 29 November 2021, the Judge did not find any error of law or procedural unfairness in the Board’s Decision.  The Judge also found that there was no Wednesbury unreasonableness or irrationality in the findings of the Board.  In any event, the Judge was of the view that the applicant failed to show any realistic prospect of success in the intended judicial review.   

11.  In his decision dated 8 February 2022, the Judge held that the applicant was unable to set out any valid ground to challenge the Board’s Decision.  The Judge also held that the applicant failed to point to any error in the decision of the Court in the assessment of his application for leave for the intended judicial review.

VI.   Legal principles

12.  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.

VII.   Analysis

1)   Length of delay and reasons for the delay

13.  The applicant was late by 21 days when he filed his application for extension of time to appeal.  The applicant only explained in the present summons and affirmation that he did not get the decisions of the Court in time.  We will adopt the Judge’s approach by focusing on the merits of the intended appeal.  

2)   Prospect of the intended appeal

14.  In the applicant’s written submissions, it simply contains bare allegations about the danger he will face if he is returned to Bangladesh. 

15.  In our judgment, the applicant does not have any prospect of success in his intended appeal.  The applicant has failed to identify any error of law or procedural unfairness in the Judge’s decision of 29 November 2021, the intended appeal cannot have any prospect of success.

VIII.  Disposition

16.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 17 February 2022.