RE PALASH BAKCHI

CAMP 200/2019

[2020] HKCA 69

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 200 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 170 of 2012)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Fung J (“the Judge”) given on 5 February 2013 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 6 August 2019.

2.  The applicant had filed an affirmation, and also lodged a written submission in support of his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 29 November 2011 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 28 October 2011 rejecting his torture claim.

5.  The applicant is a Bangladeshi national. He entered Hong Kong illegally and was arrested by the police on 23 March 2009. On 26 March 2009, he raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment based on his fear of being harmed or killed by his neighbours who are Muslims and supporters of the Awami League (“AL”) as he is a Hindu and supporter of Bangladesh Nationalist Party (“BNP”). 

6.  The applicant’s claim was detailed in Part I of the Director’s decision.  In gist, the applicant said that after the BNP lost in the 2006 election, supporters of the AL had tortured him, caused troubles to his family and took his house and land. The police did not accept the report(s) he made.  Instead he was arrested on account of a false report made by the AL people that he was a Hindu leader inciting communal disharmony between the Hindus and the Muslims.  After bribes made by his family, he was released and he left his home village.  He later went to Shenzhen from where he sneaked into Hong Kong.

7.  The Director rejected the applicant’s torture claim. The appeal to the Board was dismissed on 29 November 2011.  Principally, the Board had serious doubts about the applicant’s credibility and did not accept he was a genuine asylum seeker.  The Board was also of the view that, even accepting the applicant’s account, his case did not meet the requirements under the Convention in that there was an absence of state involvement, the harm inflicted did not attain the minimum level of severity and was not for any of the convention reasons.    

8.  On 7 December 2012, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The application was significantly outside the three-month period provided under Order 53 rule 4 of the Rules of the High Court, cap. 4A.  In the supporting affirmation, the applicant gave several reasons for his delay, namely, he was making a refugee claim to the United Nations High Commissioner of Refugees, he was applying for legal aid, and he was detained for a few weeks in a magistrates’ court case.  As to the grounds for seeking relief, the applicant contended that the Board acted in breach of natural justice in not granting him an oral hearing.

9.  The Judge considered the applicant’s appeal on paper and by his decision made on 5 February 2013 refused the application.  While the judge considered the Board’s finding on credibility might be susceptible to challenge, he was of the view that the applicant’s case, even taken to its highest, hardly satisfied the elements of torture claim.  Therefore, the Board’s decision to dismiss the applicant’s appeal could not be faulted.

10.  The 14-day period for the applicant to appeal the decision of the Judge, as stipulated in Order 53, rule 3(4) of the Rules of the High Court, expired on 19 February 2013.  The applicant only issued the summons to apply for leave to appeal out of time on 2 July 2019.  The Judge heard the application on 6 August 2019, and dismissed it on the same day.  On 19 August 2019, the applicant filed the present summons together with an affirmation to renew his application for leave to appeal out of time.

11.  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) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the 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, 22.01.2016). 

12.  The applicant was seriously out of time by more than six years.  The applicant explained that he did not receive the decision of the Court because the address he provided in the application was his friend’s address.  As the Judge pointed out, the Form CALL-1 was sent by registered post to the address provided by him and it had not been returned, and he must take the consequences for choosing to provide a friend’s address, as opposed to his own address, for receiving court documents. We also agree with the Judge that there was no good reason for him not contacting the court to make enquiry about the case for over six years.  Like the Judge, we are of the view that the delay is both inordinate and inexcusable.

13.  Additionally, the applicant had provided no proposed ground of appeal in the summons or the supporting affirmation.  He merely gave an account of his case as advanced before the Board and in his Form 86.  In the written submission, he reiterated the background of his case and asserted that his house and properties were taken by the supporters of AL, and that he was a genuine torture claimant.  Given that the applicant has failed to point to any error in the Judge’s decision, there is no prospect of success in the applicant’s intended appeal.

14.  As the intended appeal is unarguable, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons.

15.  Since the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.