Re Mamun Hossain

CAMP 86/2019

[2019] HKCA 1170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 86 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1578/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.By a summons filed on 10 May 2019, the applicant renewed his application for an extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) on 31 January 2019.  The Judge dismissed the applicant’s application for leave to apply for judicial review on the ground of want of prosecution, because the applicant failed to attend the hearing on the scheduled date and time. 

2.On 3 May 2019, the Judge dismissed the applicant’s application for leave to appeal out of time.

Background

3.The applicant is a national of Bangladesh.  He entered Hong Kong on 17 June 2006 and was permitted to remain as a visitor for 14 days.  He did not depart upon the expiry of his limit of stay, and had overstayed since 2 July 2006.  He was arrested by the police on 10 December 2006.  He lodged a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT claim”) on 7 May 2008.  His CAT claim was treated as a non-refoulement claim to be assessed on all applicable grounds upon the commencement of the unified screening mechanism in March 2014.

4.The applicant’s claim is based on the fear that he would be harmed or killed by a person named Bachchu because Bachchu suspected that the applicant was responsible for passing information to Rapid Action Battalion which led to the death of Bachchu’s brother in a cross-fire.  According to the applicant, he had been abducted and assaulted by Bachchu and associates because of that suspicion. 

5.By two notices of decision dated 17 June 2015 and 9 December 2016, the Director assessed the applicant’s claim on all applicable grounds and decided them against the applicant.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3], and the latter covered the BOR 2 risk[4].

6.The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 20 September 2017, during which the applicant testified.  After hearing the applicant, the Board found the applicant failed to establish that he would face a genuine and substantial risk of being subjected to ill-treatment.  The kidnap and assault were individual acts of Bachchu and were private in nature.  There was no evidence of state involvement.  The Board found that state protection was available to the applicant and the applicant did not make any report to the police.  The Board did not consider it necessary to deal with the issue of internal relocation.  By the decision dated 23 July 2018, the Board dismissed the applicant’s appeal/petition.

The Judge’s decisions

7.On 8 August 2018, the applicant applied to the court for leave to apply for judicial review against the Board’s decision. In the Form 86, the applicant put forth the following grounds for seeking reliefs:

(a)  The hearing bundle was only given to him just about six days prior to the hearing, and the documents therein were in English without any translation;

(b)  He answered all questions honestly and it aggravated him that his credibility was found questionable; and

(c)  The Board relied on the source of information that was not officially recognized or was hearsay in nature.  It relied on cases which were outdated.

8.In the supporting affirmation filed on the same day, the applicant essentially repeated the grounds as stated in the Form 86.

9.Upon the request of the applicant, an oral hearing was scheduled to be heard on 31 January 2019.  A notice of hearing was sent on 31 December 2018 to the applicant at his address stated in the Form 86.  Notwithstanding the notice, the applicant failed to attend the hearing as scheduled.  The Judge dismissed the applicant’s leave application for want of prosecution, and the reasons for doing so were set out in the Form CALL-1 ([2019] HKCFI 296).

10.On 19 February 2019, the applicant took out a summons for leave to appeal out of time.  It was stated in the summons, as well as in the supporting affirmation filed on the same day, that the applicant did not receive the order within reasonable period of time allowing him to do so within time. 

11.In the summons and affirmation, the applicant gave a new address.

12.An oral hearing was listed for 3 May 2019, and the applicant was notified of the date and time of the hearing by way of a letter dated 12 March 2019 sent to his new address. 

13.However, the applicant failed to attend the hearing as scheduled, and the judge dismissed the summons for want of prosecution.

The present application

14.The applicant took out the present summons on 10 May 2019.  In the affirmation filed on the same day, the applicant stated that the decision given by the Judge on 31 January 2019 was reached unfairly.

15.In the summons and affirmation of 10 May 2019, he gave the same address as he did in his summons of 19 February 2019. 

16.Pursuant to the directions of the Registrar of Civil Appeals sent to the same address, the applicant lodged his written submissions on 29 May 2019.

17.It is therefore crystal clear that the applicant could receive communication from the court by that address.

Legal principles

18.Order 53, rule 3(4) of the Rules of the High Court (Cap 4A) provides that, where an application for leave is refused by the judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  Since no appeal was brought within the said statutory time limit, the applicant cannot lodge an appeal unless an extension of time was granted allowing him to do so. 

19.In considering whether time should be extended for an appeal to be brought, the court will have regard to: (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.

20.Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would examine if he has any merit in the intended appeal.  The crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge in refusing leave to apply for judicial review. That in turns depend on if the applicant has a reasonable prospect of success in challenging the decision of the Board in a judicial review.

21.Since the proceedings was dismissed due to the absence of the applicant, instead of appealing, he should have applied to the Court of First Instance to set aside the order under Order 35 Rule 1(2). If there had been a determination on the merit, the court should then consider the matter with an approach similar to the one adopted in Shocked v Goldschmidt [1998] 1 All ER 372, discussed at para 35/2/1 of Hong Kong Civil Procedure 2019.

Discussion

22.In the present application, for the reason explained at para 14 above, the proper approach is to ask if the judge erred on 3 May 2019 in refusing to set aside the decision of 31 January 2019 when the applicant did not attend the hearing on 3 May 2019.

23.In our judgment, judge was correct in dismissing the summons of 19 February 2019 as the proper procedure was not by way of appeal.

24.Further, had the right application (for setting aside an order made in his absence) been made before the judge for setting aside the decision of 31 January 2019, the judge would have been entitled to dismiss that application for want of prosecution when the applicant did not attend and make no attempt to explain for his previous absence. 

25.The applicant should have notified the court of his change of address if he had changed his address before December 2018 when notice of hearing was given to him. If the change of address was the reason for the delay, it was attributable to his own failure to inform the court as to his change of address. 

26.Further, he did not set out the circumstances in which he found out that his application was dismissed due to his absence. As he managed to receive the order and CALL-1 Form of 31 January 2019 (which were sent to his old address) despite his change of address, he should also have received the notice of hearing regarding the hearing on 31 January 2019.

27.Thus, as the applicant did not provide any explanation for his absence on both 31 January 2019 and 3 May 2019 despite his knowledge of the same, the only reasonable conclusion that is that he did not pursue the application with the intention of seeking a determination of the matter by the court. 

28.As this Court (differently constituted) have explained in Re Rakhim Mudassar [2019] HKCA 394 at para 6, want of prosecution is a form of abuse of the court’s process and the court has the power to strike out proceedings on that ground. 

29.In the absence of any reason for his absence on both 31 January 2019 and 3 May 2019 despite due notice being given, the Judge was entitled to conclude that the applicant lacked the intention to prosecute his application in good faith. 

30.In any event, the proposed grounds for judicial review are without merits.  There was no complaint to the Board regarding the late delivery of hearing bundle and the difficulty in understanding the documents therein.  These complaints are general assertions without pinpointing any specific matters occasioning substantive errors in the Board’s decision.  The court does not accept that these complaints per se would give rise to unfairness.

31.The other two grounds are misconceived.  The Board evaluated the applicant’s risk of harm based on the case as presented by him and it took no issue on his credibility.  The complaint relating to the Board’s reliance on unofficial or outdated materials was not supported with particulars. 

32.In our view, the proposed grounds for judicial review do not satisfied the test as laid down by the Court of Final Appeal in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17.  Leave to apply for judicial review should be refused in any event.

33.For these reasons, we dismiss the applicant’s summons filed on 10 May 2019.

34.We also direct that, pursuant to Order 59 rule 2A(8) of the Rules of the High Court, the applicant may not apply for an oral hearing to reconsider his application.

The applicant acting in person