RE MONIR HOSSAIN

CAMP 25/2021

[2021] HKCA 935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 25 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1221 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

1.1  On 28 June 2018, the applicant issued his application for leave for judicial review by Form 86.  

1.2  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 11 August 2017 dismissing his appeal against the decisions of the Director of Immigration (‘the Director’) dated 16 February 2016 and 16 May 2017 rejecting his non‑refoulement claim.  The application for leave for judicial review was brought out of time for more than half a year.

1.3  On 25 May 2020, Deputy High Court Judge Bruno Chan dismissed the applicant’s application.  

1.4  The applicant took out an application on 4 June 2020 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 27 August 2020 granted the applicant’s application for an extension of time to appeal.  The applicant was ordered to file his Notice of Appeal within 14 days, that is by 14 September 2020.  

1.5  The applicant, however, did not file his Notice of Appeal.  On 21 January 2021, being late again by about four months, 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 paragraphs 3 to 8.  

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 came into Hong Kong in 2005 and overstayed since September 2005.  He was arrested in March 2009.  He sought refugee status in Hong Kong and was rejected.  After his arrest he lodged his torture claim but subsequently withdrew from it.  He was then removed to his home country pursuant to a removal order in 2012.  The applicant came back into Hong Kong in 2014 and lodged a non-refoulement claim on 9 April 2014.  He withdrew from his claim and re‑applied again on 9 January 2015.  He said he feared that he would be harmed or killed by members of the Awami League and the Chattra League.

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

3.  1  The Director decided against the applicant’s non‑refoulement claim on 16 February 2016.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, as well as other statutory and convention rights against torture and persecution.

3.2  The Director decided against the applicant’s right to life claim on 16 May 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

4.   The applicant appealed against the decisions of the Director to the Board.  Oral hearings were conducted on 15 June 2017 and 23 June 2017.  The Board dismissed the applicant’s appeal and affirmed both decisions of the Director.  In gist, the Board was of the view that the applicant’s verbal story was very different from his paper account.  In a particular piece of evidence, the applicant’s name appeared as both the accused as well as the informer at the charge sheet section of a police report.  The applicant’s story was incredible.  The applicant failed to prove his case on all applicable grounds.

5)  Decisions of the Judge

5.   In his decision dated 25 May 2020, the Judge held that he received no evidence in support of the applicant’s claim that he was detained in prison.  Even if it was the case that the applicant was detained in prison, a delay of about seven months was serious and was not accepted by the Court.  The Judge held that the applicant’s proposed grounds of appeal are broad and vague assertions without particularity. No error of the Board was shown.  

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 out of time for more than half a year.  Due to the serious delay, 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  The applicant in his summons and affirmation simply stated that he was late to file his appeal.  No particulars or explanations were provided.

7.4  In his written submissions, factual matters were repeated the assessment of which was within the province of the Board and the Director.

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 21 January 2021.