RE ARSHAD MIAH

CAMP 33/2021

[2021] HKCA 837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2891 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renew application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 10 August 2020 refusing to extend the time for him to apply for leave to apply for judicial review.

2.  The applicant had filed an affirmation in support of his application.  Despite the directions given by the Registrar of Civil Appeals, he has not lodged a written submission.  

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave 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 11 July 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 15 December 2016 rejecting his non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 39.  He entered Hong Kong illegally and was arrested by the police on 20 April 2008.  He raised a torture claim on 30 April 2008, which was processed as a non-refoulement claim upon the commencement of the unified screening mechanism in March 2014. 

6.  The applicant’s claim is based on his fear of being harmed or killed by (1) the people of the Bangladesh Nationalist Party (“BNP”) as he had injured one of their members during a fight in 2006, and (2) his two creditors due to his failure to repay their loans.  The details of the applicant’s claim were set out in the decisions of the Director and the Board.  We will not repeat them.     

7.  By his decision dated 15 December 2016, the Director rejected the applicant’s claim on the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] grounds.

8.  The applicant’s appeal to the Board was heard on 11 January 2018.  By its decision dated 11 July 2018, the Board dismissed the appeal.  Primarily, the Board found that the entirety of the applicant’s claim was fabricated.  It rejected the applicant’s assertions that he was a member of the Awami League and was charged for wounding a BNP member during a fight.  It also did not accept that the applicant had borrowed money from loan sharks and was pursued by them.  The Board concluded that the applicant was not entitled to non-refoulement protection on any of the appliable grounds.

9.  Under Order 53 rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason to extend the time for bringing the application. 

10.  On 30 July 2018, the applicant filed a Form 86 in HCAL 1495/2018 to apply for leave to judicially review the Board’s decision.  By an order dated 20 November 2018, the applicant was given leave to withdraw the application.

11.  Subsequently on 17 December 2018, the applicant filed another Form 86 in the action below (HCAL 2891/2018).  By then, the three months’ period for applying for judicial review (which began to run from 11 July 2018) had lapsed for more than one month.

12.  The applicant explained in his supporting affirmation that he had previously applied to return to his home country as his family told him his problems back home had been solved. However, his parents later told him that his enemies still wanted to kill him. In both the Form 86 and supporting affirmation, the applicant did not set out any ground for seeking relief.  

13.  By the Form CALL-1 dated 10 August 2020[5], the Judge refused to extend the time and dismissed the application for leave to apply for judicial review.  Principally, the Judge considered that the applicant’s intended judicial review had no reasonable prospect of success as there was no error of law, Wednesbury unreasonableness or procedural irregularity in the Board’s decision.

14.  By summons filed on 25 August 2020, the applicant applied for an extension of time to appeal the Judge’s decision. Deputy High Court Judge CP Pang heard the application on 30 October 2020, and by his decision handed down on 9 December 2020[6] refused the application. On 26 January 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  Although the order of the Judge was made on 10 August 2020, since the month of August fell within the Court’s summer vacation and is not to be taken into account in reckoning the period for making the appeal (see Order 3 rule 3 of the Rules of the High Court), the 14-days for the applicant to appeal the Judge’s order did not expire until 14 September 2020.  The applicant therefore did not have to issue the summons dated 25 August 2020 to apply for an extension of time to appeal.  However, by now the time to appeal the Judge’s order has expired.  We therefore have to consider whether to extend the time for the applicant to appeal.  

16.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

17.  For the reasons explained in [15] above, we consider the applicant’s delay is excusable.  Notwithstanding this, we still have to assess whether the applicant can show reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application. 

18.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

19.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

20.  In the present application, the applicant did not set out any proposed ground of appeal in his summons and his supporting affirmation.  He only stated that his problem was true, and he did not agree with the Judge’s incorrect decision. 

21.  Further, as the applicant had provided no ground for seeking relief in his application for leave to apply judicial review and the Judge did not find any legal error, irrationality or procedural irregularities in the Board’s decision, his intended judicial review application had no prospect of success, and the Judge was right in refusing to extend time and dismiss the application.       

22.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to extend time has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 26 January 2021.