RE CHAYAL MAHABUB

CAMP 286/2019

[2021] HKCA 528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 286 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 598/2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam (“judge”) given on 28 June 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 19 May 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 5 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 25 November 2013 illegally and was arrested by the police on 26 November 2013.  He lodged a non-refoulement claim on 30 November 2013. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the Board at [25] to [33] of its decision dated 19 May 2017.

4.  By a Notice of Decision dated 5 December 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 11 May 2017, the Board dismissed the appeal on 19 May 2017 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

First application for leave for judicial review: HCAL249 /2017

6.  On 29 May 2017, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  DHCJ Woodcock found that none of the applicant’s grounds was reasonably arguable and dismissed the application on 18 August 2017. 

7.  The applicant did not appeal against the refusal of leave in HCAL249 / 2017.

Second application for leave for judicial review: HCAL 598/2017

8.  Instead, on 7 September 2017, the applicant made a second application in HCAL 598/2017 to apply for judicial review against the same Board decision.  The applicant did not inform the court or the registry of his earlier failed application in HCAL 249/2017.

9.  Following a hearing on 13 August 2018 at which the applicant attended in person, the judge dismissed the application for leave to apply for judicial review in HCAL 598/2017 on 28 June 2019.  The judge held that that it was an abuse of process for the applicant to re-litigate his case by bringing a second judicial review in respect of the same Board decision.

Application for extension of time to appeal

10.  The applicant was late in bringing the intended appeal.  On 22 July 2019, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ Bruno Chan on 14 October 2019. 

11.  By a summons filed on 12 November 2019, the applicant renewed his application before this court.  In the affirmation filed on the same day, the applicant contended that DHCJ Bruno Chan was wrong in law in holding that there was no state acquiescence or involvement and that he failed to provide detailed reason in support of his decision.

12.  In the skeleton submissions, the applicant contended that the Board failed to scrutinize the Director’s Decision and failed to consider country of origin information (COI).  The Board therefore failed to meet the high standard of fairness.  The applicant also contended that the Board failed to meet the minimum standard of procedural fairness.

13.  Those grounds do not address the reasons given by the judge for dismissing his application.

Discussion

14.  Although the grounds of appeal advanced in the affirmation dated 12 November 2019 are directed towards the decision by DHCJ Bruno Chan dated 14 October 2019, the application in the summons was for leave to appeal out of time against the judge’s decision on 28 June 2019.  We would therefore consider these grounds against the judge’s decision on 28 June 2019 as well.

15.  The applicant did not disclose to the judge a previous unsuccessful application for leave to judicial review against the same Board’s Decision before DHCJ Woodcock in either his Form 86 or supporting affirmation.  No explanation has been offered by the applicant for bringing a second application for judicial review.  This amounts to an abuse of process and thus the intended appeal should be struck out: Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763, per Lam VP at [22]; Khan Kamran v Torture Claims Appeal Board [2020] HKCA 380; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1].  This also applies to an application to appeal out of time.  On this basis alone, this application should be dismissed (Nahid Mohammad [2020] HKCA 735, per Au JA at [27]).

16.  In any event, the applicant did not supply sufficient particulars for the grounds directed towards the alleged errors by the judge.  There is simply no ground for this court to intervene in the judge’s decision.

17.  In the circumstances, the applicant’s intended appeal has no merits at all and it would be futile to extend time.  Accordingly, we dismiss the applicant’s summons of 12 November 2019.

18.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.