RE RAHMAN MOHAMAD ZILLUR

CAMP 12/2021

[2021] HKCA 1228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 12 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 203 OF 2017)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 18 August 2017 refusing to extend time for application for leave for judicial review and dismissing the applicant’s application for leave 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 (“the Board”) dated 6 January 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 January 2015 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 26 October 2009 but was refused permission to land.  He lodged a claim for non-refoulement protection on the same day. 

3.  The applicant’s claim was based on threats from his elder brother arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [5] to [8] of the CALL-1 Form.

4.  By a Notice of Decision dated 13 January 2015 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], the persecution risk^[2] and the torture risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 28 October 2015, the Board dismissed the appeal on 6 January 2017 (“the Board’s Decision”).

6.  At [34] of the Board’s Decision, the Board found that the applicant’s case was not credible and that he was not a genuine claimant.  The Board was also satisfied at [18] that there was insufficient basis to hold that no reasonable protection would be available to the applicant and at [20] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 12 May 2017 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application filed on 12 May 2017, the applicant deposed that he was applying for leave for judicial review against the decisions of the Director and the Board but he did not give any ground.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review and dismissing the applicant’s application for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [2] to [4] and [19] to [22] of the CALL-1 Form:

“2. The applicant failed to file his Form 86 in a timely manner within three months of the date of the adjudicator’s decision, (Order 53 Rule 4). He is, in fact, just over one month late. His notice of application does not set out the reasons for the delay as it is required. His oral explanation during the hearing was that the address his landlady gave him which he in turn provided to the Wanchai office of the TCAB was not accurate. Apparently, his landlady is not very educated and gave him an incorrect address. This mistake meant the decision from the TCAB did not reach him by post. When he went to sign in, the immigration officer told him he had been sent the decision but he had not replied. He then realised he had not received his post and went to the TCAB office in person. This is why his Form 86 is late. He told me his landlady owned the premises and had lived there for a long time so I find it hard to believe she would not accurately know her own address. Also, there is nothing to reply to when one receives a decision so I don’t believe the immigration officer would have asked him why he had not replied. In any event, the explanation is a bare assertion from the applicant.

3. I have considered the legal principles for granting an extension of time for judicial review. The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

4. The delay is not insignificant and there is no good reason for extending time. This is because the merits of the substantive application, after perusal of the papers and hearing the applicant, are weak. Moreover, the application does not raise any questions of general public importance. The extension of time sought is an abuse of process and ought to be refused. Delay alone is enough to dispose of this application. However, if I am wrong, I proceed to consider the merits.

…

19. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find both the Director’s and adjudicator’s decisions to be without fault. They analysed the material, claims and evidence carefully, logically and with caution. The applicant’s complaints in the affirmation against them and the procedure undertaken are not made out.

20. I found no substance in the grounds of this application. What was in the supporting affirmation does not cover all the grounds set out nor are they substantiated. The applicant’s criticism are bare assertions without substance.

21. I do not find any that show there was an error of law by the Director or the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

22. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

Application for extension of time to appeal and grounds for appeal

10.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 7 August 2020, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ Bruno Chan on 19 November 2020.

11.  By a summons filed on 12 January 2021, the applicant applied to this court for extension of time to appeal.  In the summons he stated that:

“The High Court judge refused my leave application. I do not agree with him. He could not show any good cause. He only say the Adjudicator did not make any error which is not totally correct.”

12.  In his affirmation of the same day filed in support of the application, the applicant deposed that:

“Affirmation for leave to apply, but the High court judge refused my apply. I want to challenge his decision, give me chance.”

13.  In the written submission dated 9 March 2021, the applicant explained why it is unsafe for him to return.  He then submitted that:

“…the High Court cancel my application. It is very painful for me, an I did not received any letter from the High Court to challenge the decision. After cross the time my officer of immigration asked me to go back as my claim is finished. Then I came High Court and apply for extension of time. Same of judge cancel to extension of time. Then I apply to the Court of Appeal to extended of time.”

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 rule 14A.

15.  In the summons dated 12 January 2021, he used the male pronoun to refer to the judge whose decision was the subject matter of the intended appeal, thus the application was apparently directed against the decision by DHCJ Bruno Chan.

16.  In cases where (like the present case) the judge refused to grant extension of time to appeal, the proper application for an applicant to make is to renew such application before this court instead of appealing against the refusal to grant extension of time: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104.  We therefore treat the application in the summons dated 12 January 2021 as a renewed application for extension of time to appeal.

17.  The applicant claimed that he did not receive the letter enclosing the CALL-1 Form but he did not offer any detail for this explanation.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.

18.  We nonetheless go on to consider the merits of the intended appeal.

19.  The applicant claimed that the judge failed to give sufficient reasons in the CALL-1 Form.  We note that the applicant did not give any ground for judicial review in the Form 86 or the supporting affirmation.  He also did not explain the delay in bringing the application for leave for judicial review.  The judge nonetheless considered whether extension of time should be granted and she examined the decisions by the Board and the Director with rigorous examination and anxious scrutiny. 

20.  We have carefully considered the CALL-1 Form and we are of the view that the judge has given sufficient reasons for her decision and this ground of appeal is entirely without merit.

21.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 12 January 2021 is dismissed accordingly.

22.  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.