RE HOSSAIN RIPON

CAMP 93/2019

[2019] HKCA 1190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 93 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 111 OF 2017)

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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):

1)  Renewed application for extension of time to appeal

1.1  On 3 April 2017, the applicant issued his application for leave for judicial review by Form 86.  

1.2  The applicant’s intended judicial review was against the Director’s decision and the decision of the Torture Claims Appeal Board (‘the Board’) dated 28 March 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 15 March 2016 rejecting his non-refoulement claim.  The application was brought within time.

1.3  On 18 September 2017, Toh J dismissed the applicant’s application.  

1.4  Being more than one year out of time, the applicant took out an application on 29 October 2018 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 9 May 2019 rejected the applicant’s application for an extension of time to appeal.  

1.5  On 15 May 2019, the applicant by summons together with a supporting affirmation issued a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paras 3 to 8.  He lodged his written submissions on 20 June 2019.

1.6  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.

2)  Factual background

2.  Briefly stated, the applicant is a Bangladeshi national.  He was arrested by the police in Hong Kong on 28 June 2013 for illegal remaining.  He subsequently raised a non-refoulement claim based on his fear that he would be harmed or killed by his half uncles in Bangladesh if he was to be refouled due to a land dispute.

3)  The Director’s Decision and the Director’s Further Decision

3.1  The Director decided against the applicant’s non-refoulement claim on 15 March 2016.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

3.2  By a Further Decision of the Director dated 10 January 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant and decided against the applicant.

4)  The Board’s Decision

4.  The applicant appealed against the Director’s Decision to the Board.  The oral hearing was conducted on 24 February 2017.  The Board dismissed the applicant’s appeal on 28 March 2017.  In gist, the Board rejected the applicant’s claim upon a finding of a lack of credibility on the applicant.

5)  Decision of the Judge

5.  In her decision dated 18 September 2017, the Judge held that she could not see any error from the Board’s decision.  In her decision dated 9 May 2019, the Judge held that she could not see any ‘good grounds for the applicant’s substantive appeal’.  

6)  Legal principles

6.  In 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 January 2016), 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)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal;

(4)  Prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

7.1  The applicant was more than a year late when he filed summons in the lower court for extension of time to appeal. The delay was very substantial.  Therefore, the intended appeal must satisfy real prospect of success before an extension of time will be granted: Re Ansar Muhammad [2018] HKCA 227.

(2)  Prospect of the intended appeal

7.2  In our judgment, the applicant does not have any prospect of success in his intended appeal.

7.3  In the present application, the applicant in his summons asked the Court to refer to his affirmation which is pro forma type of affirmation commonly used in these applications containing statements such as that the Judge was wrong in law in holding that there was no state acquiescence and that the Judge failed to give detailed reasons.  No particulars were provided by the applicant.

7.4  In the applicant’s written submissions, it is again a pro forma type of written submissions. The applicant regurgitated general case authorities commonly used in non-refoulement cases without focusing on the facts and evidence emanating from his case.

7.5  The focus of an appeal in this Court is the correctness of the decision of the Judge.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

8)  Disposition

8.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 15 May 2019.