RE UDDIN MD NASIR

CAMP 166/2021

[2021] HKCA 1572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 166 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1491 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) :

1)  Renewed application for extension of time to appeal

1.  On 27 July 2018, the applicant issued his application for leave for judicial review by Form 86.  

2.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 4 June 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 6 December 2017 rejecting his non-refoulement claim.  The application was brought within time.

3.  On 24 August 2020, Deputy High Court Judge Bruno Chan dismissed the applicant’s application. 

4.  The applicant had 14 days to appeal.  Being out of time to appeal, the applicant took out an application on 14 October 2020 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 30 March 2021 rejected the applicant’s application for an extension of time to appeal (‘the Extension Decision’).  The Judge stated at paragraph 2 of the Extension Decision that the 14-day period expired on 7 September 2020.  This is not entirely correct given that August is the usual month of Court vacation.  This means the deadline for the 14-day period from 24 August 2020 is 14 September 2020.  The summons for extension of time was taken out on 14 October 2020.  This means the applicant was about one month late.  

5.  On 17 May 2021, the applicant by summons together with a supporting affirmation issued what is essentially a renewed application to this Court for extension of time to appeal.

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 and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

7.  Briefly stated, the applicant is a Bangladesh national.  He came into Hong Kong illegally by boat on 29 September 2015.  He subsequently raised a non-refoulement claim on 3 October 2015 based on his fear that he would be harmed or killed by members of the Awami League.

3)  The Director’s Decision

8.  The Director decided against the applicant’s non-refoulement claim on 6 December 2017.  The Decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  risk, Bill of Rights (‘BOR’)  Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board on 19 December 2017.  An oral hearing was conducted on 14 March 2018 for the Board’s assessment of all applicable grounds.  In gist, the Board found that the applicant was not a member of the Bangladesh National Party.  The applicant’s knowledge of the BNP was inconsistent with his claim of being an active member of the BNP.  There were inconsistencies within his evidence provided.  The Board found that the applicant’s evidence was fabricated.  He was not threatened or harmed by members of the Awami League.  The Board dismissed the applicant’s appeal and the Director’s Decision was confirmed.

5)  Decisions of the Judge

10.  In his decision dated 24 August 2020, the Judge held that the grounds for judicial review as provided by the applicant, such as misdirection in law, procedural impropriety, unfairness, irrationality, are all broad and vague assertions without any particulars or specifics as to how they applied to the applicant’s case.  The alleged grounds were not reasonably arguable.  Other alleged grounds such as that the hearing bundle was provided to the applicant late was immaterial, as most of the documents should have been familiarized by the applicant while he had legal representation.  

11.  In the Extension Decision, the Judge held that the applicant’s explanation for the delay that the mailbox access was restricted by the landlord was not supported by evidence.  More importantly, the applicant provided no draft grounds of appeal.  There was no identification of any error in the Judge’s decision.

6)  Legal principles

12.  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; an

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

7)  Analysis

(1)  Length of delay and reasons for the delay

13.  The Judge was correct to rule that the delay in lodging the appeal was significant.  Importantly, the focus should be on the merits of the intended appeal.

(2)  Prospect of the intended appeal

14.  In our judgment, the applicant does not have any prospect of success in his intended appeal.  The applicant has not identified any error of law or procedural unfairness in the decision of the Judge in refusing to grant leave for him to apply for judicial review.

8)  Disposition

15.  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 May 2021.