RE HABIBUR RAHMAN

CAMP 350/2021

[2022] HKCA 243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 350 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 350 OF 2018)

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J U D G M E N T

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

1.  By a summons filed on 23 August 2021[1], the applicant applied to this Court for leave to appeal against the order made by Campbell-Moffat J (“the Judge”)  dated 4 May 2021 refusing the applicant’s application for an extension of time to appeal ([2021] HKCFI 1262)  (“EOT Decision”)  against the Judge’s previous order dated 30 June 2020, by which the Judge dismissed his application for leave to apply for judicial review ([2020] HKCFI 1403)  (“Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 8 February 2018 (“the Board’s Decision”)  and the decision of the Director of Immigration (“the Director”)  dated 12 January 2017 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Application for dismissal of appeal

4.  On 31 December 2021, the applicant filed a request for dismissal of appeal.

5.  On the basis of the applicant’s application for dismissal alone, we will dismiss this application for extension of time to appeal.

6.  In any event, for completeness, as further seen below, we also would have dismissed the applicant’s present application on merits.

Background

7.  The applicant is a national of Bangladesh.  He entered Hong Kong as a visitor on 18 May 2009 and was allowed to stay until 25 May 2009.  He overstayed and was arrested by the police for overstaying in Hong Kong on 24 February 2013 and referred to the Immigration Department on 25 February 2013.  On 26 February 2013, he lodged a torture claim by way of written representation, which was rejected on 9 September 2013 and his appeal was dismissed by the Board on 9 January 2014.  He lodged a non-refoulement claim by way of written representation dated 7 January 2014 on the basis that he would be harmed or killed by Awami League members if he returned to Bangladesh.  Details of the applicant’s claim were summarised by the Judge at [5] of the Leave Decision.

8.  By a Notice of Decision dated 12 January 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds other than torture risk[2], namely BOR2 risk[3], BOR3 risk[4], and persecution risk[5].

9.  The applicant then appealed against the Director’s Decision to the Board.  He attended an oral hearing before the Board on 13 December 2017.  The Board dismissed his appeal on 8 February 2018 and confirmed the Director’s Decision.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his case on all applicable grounds and that internal relocation would be available to him upon his return to Bangladesh.  Accordingly, the Board dismissed his appeal.

The Leave Decision

10.  On 6 March 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  However, no ground of review was provided by the applicant.

11.  After considering his application on paper, by the Leave Decision, the Judge dismissed his application for leave to apply for judicial review for the following reasons:

“Grounds of review

10. There were no grounds of review. The applicant seeks a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007)  10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable. Even taken at their highest, the applicant would not have been able to satisfy the tribunal that his case fell within the relevant heads of claim.

12.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

The EOT Decision

12.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

13.  On 29 September 2020, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was 2½ months late with his intended appeal.  In his supporting affirmation, he only stated that he did not receive the letter from the High Court and that he only learnt of the Leave Decision when he attended the Shatin Magistracy on 18 September 2020.  As the applicant failed to attend the hearing of the EOT Summons on 4 May 2021, the Judge considered his application on paper.

14.  By the EOT Decision, having considered the length of delay, the reason of delay and that his application had no merit, the Judge refused his application for extension of time to appeal.

The Present Application

15.  By a summons and supporting affirmation both filed on 23 August 2021[6], the applicant applied for leave to appeal against the EOT Decision.  In his summons, he requested that leave be granted to him to advance a new sole ground of appeal, without stating what the sole ground of appeal was.  In his supporting affirmation, he only stated that the decision made by the High Court was reached unfairly without allowing him an opportunity to clarify his case and situation in his country and that he had not received the decision on time.

16.  Pursuant to the directions given by the Registrar of Civil Appeals on 23 August 2021, the applicant lodged his written submissions on 2 September 2021.  In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim.  The applicant further contended that the Board ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director’s decision.  He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.  More importantly, none of his submissions identified any error in the Leave Decision.

Discussion

17.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

18.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

19.  In our view, his application has no merit at all and must fail.  We agree with the Judge that the applicant’s delay of 2½ months before bringing his intended appeal was substantial and he failed to provide any cogent explanation for his delay.  Further, the arguments raised in his written submissions are all new grounds not raised before the Judge.  It is well established that this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Accordingly, we refuse to entertain his new grounds.

20.  More importantly, and in any event, his submissions are all general and bare assertions and the applicant did not state how the legal propositions cited are relevant to his case.  He also failed to identify any error in the Leave Decision.  Accordingly, they are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

21.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  We would therefore have also dismissed the applicant’s summons filed on 23 August 2021 on merits in any event.