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CAMP 135/2022
[2022] HKCA 1798
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 135 OF 2022
(ON AN INTENDED APPEAL FROM HCAL 1605/2019)
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| RE: |
ASLAM HOSSAIN |
Applicant |
____________________
Before: Hon Chu VP and Barma JA in Court
Date of Judgment: 12 December 2022
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of DHCJ P Li (“the Judge”) dated 13 January 2021 refusing to grant an extension of time to the applicant to apply for leave 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 12 May 2017 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 21 May 2015 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Bangladesh. He entered Hong Kong illegally on 27 April 2007. He was arrested by the police on 21 April 2008. The applicant first lodged a torture claim on 19 September 2008, and thereafter submitted a torture claim afresh via the Duty Lawyer Service on 17 December 2013.
3. The applicant’s claim was based on fear of being harmed or killed by his brother Rahman. The details of the applicant’s claim have been summarised by the Judge at [6] to [15] of his decision (“the CALL-1 Form”)[1].
4. By a Notice of Decision dated 21 May 2015, the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], the persecution risk[3] and the BOR 3 risk[4].
5. The applicant appealed to the Board. The Board dismissed the applicant’s appeal by a decision dated 12 May 2017 in respect of his claim based on the BOR 3 risk, the persecution risk and the torture risk. The Board found inconsistencies in the applicant’s evidence on the material events, which led it to conclude that the future risk of harm was low. In any event, the Board found that viable options of internal relocation were available to the applicant in Bangladesh, for instance to Dhaka.
The Judge’s decision
6. The applicant filed a Form 86 on 13 June 2019 seeking to judicially review the Board’s Decision. The application for leave for judicial review was almost 2 years out of time.
7. In his affirmation filed on 12 June 2019, the applicant merely reiterated his concerns regarding a return to Bangladesh, without setting out any discernible grounds of review.
8. After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant an extension of time for the applicant to apply for leave for judicial review. The Judge gave the following reasons in refusing to grant an extension of time at [22] to [34] of the CALL‑1 Form:
“22. The applicant filed the leave application for judicial review on 13 June 2019. He was about 2 years out of time. In the Form 86, he did not apply for extension of time for the leave application.
23. In his affirmation, he reiterated that his enemy wanted to kill him. The screening system was no good. It should be changed.
Out of Time Leave Application
24. As mentioned above, the applicant was out of time for about 2 years. He should have first sought an extension of time for the leave application.
25. In considering whether there is good reason for the delay, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [6] The applicant did not apply for leave within 3 months as required under the law, he did not provide any explanation for the delay.
26. During the hearing before this court, the applicant indicated that he was ignorant about the 3-month-requirement for leave application. He only knew about the TCAB decision when the Immigration Officer informed him during the same week when he filed the leave application. Before that, he had not received the TCAB decision.
27. He reported to the Immigration Department every 2 weeks initially and later every 2 months. He was not informed of the TCAB decision during those reporting schedules. He had not changed his address since May 2017.
28. I noted in the notice of appeal to TCAB that the applicant gave an addressed [7] slightly different from the address in the Form 86 which was used by this court in the notice of hearing. [8] The former was ‘135B, XX village’ but the latter was ‘G/F, Rm B, 135, XX village’.
29. In the notice of hearing sent by the TCAB in 2016, the address used was ‘135B, XX village’ [9]. It was the same address given by the applicant in his notice of appeal.
30. Had there been any error due to the address causing problems in the mail, the applicant must bear the consequence. He had a duty to update the address with the Director and the TCAB under s 37ZA (2) of the Immigration Ordinance. Even if he had changed his address, he should have arranged a method for the mail to be diverted to him.
31. In addition, the applicant had attended the hearing in TCAB on 29 September 2016, there is no reason that he did not make any enquiry about the outcome of his appeal.
32. I do not accept the applicant’s explanation that he had not received the TCAB decision. I do not accept that he only knew about it when informed by the Immigration Department shortly before he filed the leave application in 2019.
33. I agree with the decision of the TCAB. There is no merit in the applicant’s claim given the evidence. In my judgment, there is no error of law and procedure. The decisions of the Director and the TCAB are reasonable.
Conclusion
34. In the circumstances, there is no good reason for extending the time for the leave application. I refuse leave to apply for judicial review.”
The present application for extension of time to appeal
9. The applicant’s address as stated in his Form 86 was at Pat Heung, Yuen Long, New Territories (“the Yuen Long Address”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Yuen Long Address on 13 January 2021. This letter was not returned undelivered.
10. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 13 January 2021.
11. The applicant took out a summons in the Court of First Instance on 28 January 2021 seeking extension of time to appeal, in which his address was also stated to be the Yuen Long Address. In his supporting affirmation filed on the same date, he merely stated “the limit of appeal is over” without providing any reasons.
12. The applicant’s application to appeal out of time was dismissed by the Judge on 25 March 2022[5].
13. By a summons filed on 3 May 2022, the applicant renewed his application for an extension of time to appeal before this court. In the summons and his supporting affirmation, the applicant simply asked this court to extend time for him to appeal.
14. In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court. He is thus deemed to have abandoned his right to rely on written submissions.
15. Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
Discussion
16. As noted above, the Judge’s decision dated 13 January 2021 was sent to the last known address of the applicant (which was the Yuen Long Address) on the same day, and was not returned undelivered. The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.
17. The applicant has also failed to proffer any explanation or reason for his delay in lodging his intended appeal.
18. We have nonetheless proceeded to consider the merits of the intended appeal, given the short delay.
19. The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board’s Decision was said to be not in accordance with the law, procedurally unfair or Wednesbury unreasonable. That being the case, the application for leave for judicial review (and an extension of time to apply for such leave) was hopeless and rightly dismissed by the Judge.
20. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
21. It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge. This has clearly not been done here.
22. For these reasons, we do not see any prospect of success in the intended appeal. This court will not grant an extension of time for a hopeless appeal. The summons filed on 3 May 2022 is accordingly dismissed.
(Carlye Chu)
Vice-President |
(Aarif Barma)
Justice of Appeal |
The applicant acting in person
[1]
[2021] HKCFI 75
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[5]
[2022] HKCFI 817
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