RE TAROK DAS alias TAROK CHANDRA DAS

CAMP 238/2020

[2021] HKCA 820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 238 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 2621 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 21 November 2018, the applicant issued his application for leave for judicial review by Form 86.

1.2  The applicant’s intended judicial review was against the decision of the Director of Immigration (‘the Director’) (as an interested party) and the decision of the Torture Claims Appeal Board (‘the Board’) dated 8 November 2018 dismissing his appeal against the decision of the Director dated 26 November 2015 who rejected his non-refoulement claim.  The application was brought within time.

1.3  On 8 November 2019, Deputy High Court Judge K W Lung dismissed the applicant’s application.  

1.4  Being more than half a year out of time, the applicant took out an application on 11 June 2020 before Deputy High Court Judge C P Pang requesting essentially for an extension of time to appeal.  The Judge on 25 November 2020 rejected the applicant’s application for an extension of time to appeal.  

1.5  On 14 December 2020, the applicant by summons together with a supporting affirmation 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.  He lodged his written submissions on 2 February 2021.

1.6  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, 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 Bangladeshi national.  He was arrested by the Police in Hong Kong on 29 November 2011 for overstaying.  He subsequently raised a non-refoulement claim based on his fear that he would be harmed or killed by members of the Awami League because he supported the rival Bangladesh Nationalist Party and that he was Hindu.

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

3.1  The Director decided against the applicant’s non-refoulement claim on 26 November 2015.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk and persecution risk.  The applicant previously raised a torture claim with the Department and was rejected on 9 March 2012.

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.  The applicant appealed against the Director’s Decision to the Board.  The oral hearing was conducted on 10 May 2018.  The Board dismissed the applicant’s appeal on 8 November 2018.  This was a hearing de novo and the Board took into account the claimant’s torture claim as well.  In gist, the Board rejected the applicant’s claim upon a finding of a lack of credibility on the applicant.

5)  Decision of the Judge

5.  In DHCJ K W Lung’s decision dated 8 November 2019, he held that there was no factual basis to support the applicant’s claim.  In DHCJ C P Pang’s decision dated 25 November 2020, he held that he cannot see any prospect of success in the applicant’s intended appeal.  

6)  Legal principles

6.  In 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), 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.

7)  Analysis

(1)  Length of delay and reasons for the delay

7.1  The applicant was more than half a year late when he filed the summons in the lower court for extension of time to appeal.  The delay was very substantial.  Therefore, the intended appeal must satisfy the requirement of real prospect of success before an extension of time will be granted: Re Ansar Muhammad [2018] HKCA 227.

(2)  Prospect of the intended appeal

7.2  In our judgment, the applicant does not have any prospect of success in his intended appeal.

7.3  In the present application, the applicant in his summons simply stated he did not receive any letter from the High Court which led to his delay. No particulars or explanations were provided.

7.4  In the applicant’s supporting affirmation, he simply stated that DHCJ CP Pang refused to extend time for him.

7.5  In the applicant’s written submissions, he repeated the factual matters of his case.  He opined that the lower court’s decisions were wrong.

7.6  The focus of an appeal in this Court is the correctness of the decision of DHCJ KW Lung.  Since the applicant has not identified any error of law or procedural unfairness in the decision below, the intended appeal cannot have any prospect of success.

8)  Disposition

8.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 14 December 2020.