RE MANIK MD MAHAMUDUN NABI

CAMP 361/2021

[2022] HKCA 471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 361 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 405 OF 2019)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 7 May 2020[1] dismissing his application for leave to apply for judicial review.

2.  Due to the applicant’s application for legal aid, this application was stayed until 2 November 2021. On 24 November 2021, the applicant lodged a new written submission to support his application, after his earlier submission of over 100 pages was rejected by the Registrar of Civil Appeals for failing to comply with the Court’s directions.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the applicant’s summons, affirmation and written submission, 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”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 47. He arrived in Hong Kong on 6 June 2015 and was permitted to remain as a visitor until 20 June 2015. He overstayed and on 22 June 2015 surrendered to the Director of Immigration. He subsequently raised a non-refoulement claim based on his fear of being harmed or killed by (i) his creditor, Shahid, and his associates, who were affiliated with the Awami League (“AL”) due to his failure to repay his loan, (ii) the Bangladesh police and government authorities at the instigation of Shahid, and (3) his political enemy and the supporters of AL because of his involvement with the Bangladesh Nationalist Party (“BNP”). The details of the applicant’s claim and his evidence were set out in the Director’s decision at [6] and in the Board’s decision at [15] to [91]. We will not repeat them.

6.  By his decision dated 2 May 2018, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

7.  The applicant appealed the Director’s decision to the Board. A hearing was held on 12 September 2018, during which the applicant gave evidence and answered questions from the Board. By its decision dated 16 January 2019, the Board dismissed the appeal. In summary, the Board was not satisfied that the applicant’s claims were truthful, and found he had fabricated his claims in an attempt to extend his stay in Hong Kong, having regard to the many and significant inconsistencies between his case before the Director and his evidence given at the appeal before the Board, the internal inconsistencies and inherent improbabilities in his case as well as the lack of documentary support for salient aspects of his case (see the full reasons at [97] to [147] of the Board’s decision). The Board did not accept the applicant would be harmed by Shahid, his political enemy, the AL people or the Bangladesh police and authorities, and found there was no real risk that he would face any harm for the reasons he claimed if he were to return to Bangladesh. The Board concluded that the applicant failed to establish his entitlement to non-refoulement protection under any of the applicable grounds.

8.  On 13 February 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He did not put forward any grounds for seeking relief.

9.  On 17 March 2020, the applicant filed an affirmation, stating that he wanted to go back to his home country to do a heart operation because he was very sick. He exhibited a medical certificate dated 17 July 2019 from Dr Fanny Cheng of Queen Elizabeth Hospital which stated that the applicant had atrial septal defect with left to right shunt and diabetes mellitus that required regular medication. The certificate also stated that the applicant’s cardiac condition was stable while on medication, but he had shortness of breath on brisk walking and climbing stairs.

10.  By the Form CALL-1 dated 7 May 2020, the Judge acceded to the applicant’s request to withdraw his application and dismissed the application for leave to apply for judicial review.

11.  Order 53, rule 3(4) of the Rules of the High Court provides that an applicant may appeal to the Court of Appeal against a refusal of leave to apply for judicial review within 14 days after it was made. The 14-day for the applicant to appeal the Judge’s decision expired on 21 May 2020.

12.  By a summons filed on 16 June 2020, the applicant applied for an extension of time to appeal the Judge’s decision. He stated in the supporting affirmation that while he was waiting to go back, there was an outbreak of Covid-19 in Bangladesh, and as he was a high risk person owing to his health condition he could not go back. He asked for an extension of time so that he could go back when the situation has improved. The Judge dealt with the application on the papers, and by his decision handed down on 11 August 2021[6] refused the application. In gist, the Judge found the intended appeal had no reasonable prospect of success since the applicant’s application was dismissed upon his application to withdraw it.

13.  On 27 August 2021, the applicant filed the present summons together with an affirmation to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

14.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

15.  The applicant was more than three weeks late. In the summons, supporting affirmation and written submission, the applicant repeated and elaborated on the explanation he gave in the application before the Judge (see [12] above). He added that he did not know English or how to appeal, and after seeking assistance from the Resource Centre for Unrepresented Litigations, he tried to reopen his case by filing a new application for leave to apply for judicial review, but was refused filing by Master Yip. Considering that the delay is not serious and the circumstances of the case, we are prepared to accept the explanations. We would focus on the merits of the intended appeal, which is the most important consideration.

16.  The applicant’s written submission set out the following grounds of appeal (respectively “Ground (1)” and “Ground (2)”):

(1) The Judge erred in failing to consider the substantive merits of the underlying judicial review application and the intended appeal.

(2) The Judge, in refusing to extend the time to appeal, erred in failing to consider that his decision on the applicant’s application to withdraw was erroneous.

17.  The applicant stated in the summons and affirmation that the medical system in Bangladesh is now at a standstill due to the Covid-19 outbreak and corruption, and it is impossible for him to receive proper medical treatment. He requested to be permitted to remain in Hong Kong so that he could save his life.

18.  Under Ground (1), the thrust of the applicant’s arguments is that the Judge fell in error by proceeding to dismissing his application for leave to apply for judicial review instead of simply treating it as having been withdrawn, and the Judge further erred in dismissing his application without assessing the substantive merits of his intended judicial review. In this connection, the applicant put forward a number of criticisms of the Board’s decision, including (i) applying too high a standard of proof from him in, for instance, requiring documentary evidence to support his claims of having taken a loan from Shahid; (ii) unreasonably focusing on immaterial inconsistencies in his claim; (iii) dismissing some of his documents as being not genuine; and (iv) rejection of his case on irrational grounds.

19.  For the following reasons, we are of the view that Ground (1) has no merits:

(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.

(2) As the applicant had withdrawn his application, it was not necessary for the Judge to adjudicate on the merits of the application. As is evident from the Form CALL-1, the Judge dismissed the application for leave to apply for judicial review following the applicant’s request to withdraw the application. There is thus no basis for the criticism that the Judge should have assessed the merits of the underlying judicial review.

(3) In any event, it is pertinent to note that the applicant had not put forward any ground to support his application for leave to apply for judicial review. The complaints that he now raised against the Board’s decision were not contained in either the Form 86 or the supporting affirmation. The criticism that the Judge should have regard to these complaints and assessed the underlying merits of the intended judicial review accordingly lacks proper foundation.

(4) For the above reason, the criticism that the Judge’s dismissal of the application for leave to apply for judicial review was unlawful and procedurally unfair cannot stand.

20.  As to Ground (2), it follows from our rejection of Ground (1) that this ground must also fail. In any event, this is a renewed application to extend the time for appeal, and not an appeal against the Judge’s refusal to extend the time for appeal.

21.  As to the matters stated in the summons and the affirmation, while we sympathise with the applicant’s health condition and his concerns about the risks caused by the pandemic, they do not constitute viable grounds of appeal against the Judge’s decision.

22.  For the reasons set out above, we are of the view that the applicant’s intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success. This being the case, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 27 August 2021.