RE AKTER SHAHANA

CAMP 215/2019

[2020] HKCA 156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 215 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 161 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 2 April 2019, Deputy High Court Judge Josiah Lam dismissed the applicant’s application for leave for judicial review (‘Decision of the Judge’).

1.2  The applicant was entitled to appeal against the Judge’s refusal as of right.  But as she did not do so within the 14-day period specified by law, she has to obtain an order for extension of time to appeal.  Being about seven weeks out of time, the applicant issued an application dated 3 June 2019 before the Court of First Instance requesting essentially for an extension of time to appeal.  Deputy High Court Judge Bruno Chan on 24 July 2019 rejected the applicant’s application (‘Extension of Time Decision’).

1.3  On 3 September 2019, the applicant by summons 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.

1.4  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application like the present one without an oral hearing. Having considered the summons and the affirmation filed, 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 national of Bangladesh.  She entered Hong Kong legally but overstayed.  She surrendered herself to the Immigration Department.  She subsequently raised a non—refoulement claim based on her fear that she would be harmed or killed by members of the Awami League.  She is a member of the rival political party.

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

3.1  The Director decided against the applicant’s non-refoulement claim on 31 May 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 6 July 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

4.1  The applicant appealed against the Director’s Decision to the Board.  An oral hearing was conducted.  The Board dismissed the applicant’s appeal.  

4.2  The Board found that even on the applicant’s own account, the complained situation fell short of any risk that warranted non-refoulement protection.  In any event, reasonable state protection and internal relocation were available to the applicant.

5)  Decision of the Judge and Extension of Time Decision

5.1  The Judge held that it was an abuse of process for the applicant to take out another application for leave for judicial review when she had already made a previous application before Deputy High Court Judge Woodcock in HCAL 524/2017 which was refused.   

5.2  In the Extension of Time Decision, the Court held that the applicant did not in her summons or supporting affirmation provide any draft or proposed grounds of appeal, or any particulars of error in the decision or why it may be argued that the Decision of the Judge was unfair or unreasonable.  The Court did not see any prospect of success in the applicant’s intended appeal.

6)  Legal principles

6.1  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.

See : 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).

7)  Analysis

(1)  Length of delay and reasons for the delay

7.1  The applicant was almost seven weeks late when she filed the summons in the court below for extension of time to appeal.  The Court considered that, in any event, there was no merit in the applicant’s application.     

7.2  Similar to her application before Deputy High Court Judge Bruno Chan, the applicant in her present application before this Court did not state any reason for her delay.

(2)  Prospect of the intended appeal

7.3  Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success.  It clearly is an abuse of process to seek another judicial review when her previous one was already decided against her.

8)  Disposition

8.  As the intended appeal is unarguable, it will be futile to grant any extension of time.  Accordingly, we will dismiss the applicant’s summons dated 3 September 2019.