Re Islam Mohammad Amirul

CAMP 122/2019

[2019] HKCA 1215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 122 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 833/2017)

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J U D G M E N T

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

Background

1.On 23 May 2017, the Torture Claims Appeal Board (“TCAB”) rejected the applicant’s non-refoulement claim (“the TCAB decision”).  Under Order 53 r.4 of the Rules of the High Court (“RHC”), an application for leave to judicially review the TCAB decision should be made, at the latest, within 3 months of that decision.

Late application for leave for judicial review

2.However, the applicant only filed his application for leave to judicially review the TCAB decision on 31 October 2017.  It was therefore out of time.  Nevertheless, under Order 53 rule 4 RHC, the court has a discretion to extend time if there is good reason for extending the period.    

The Judge’s August Decision

3.The matter came before Deputy High Court Judge Bruno Chan (“the Judge”) who considered the papers and heard the applicant in court.  On 31 August 2018, the Judge in the exercise of his discretion refused to grant an extension of time, giving reasons as set out in a document known as the CALL-1 form (“the Judge’s August Decision”).

Late application for leave to appeal the Judge’s August Decision 

4.Under Order 59 rule 2B(1) RHC, the applicant had 14 days in which to file a summons before the Judge for leave to appeal the Judge’s August Decision, ie by 14 September 2018. However, he only filed a summons for leave on 18 September 2018.  So, again, his application was out of time.

The Judge’s October Decision   

5.The Judge dismissed the application for the reason set out in a decision given on 29 October 2018 (“the Judge’s October Decision”)[1]. The reason was that under Order 59 rule 2B(1), the judge at first instance had no power to extend time for this application.  We will discuss this later in this Judgment.   

6.Under Order 59 rule 2B(3) RHC, the applicant then had 14 days in which to make a further application for leave to appeal to the Court of Appeal[2], ie by 12 November 2018.  However, the applicant failed to do so. 

Application to the Judge to extend time

7.Instead, on 27 December 2018 he filed a summons before the judge (not the Court of Appeal) for an extension of time.

The Judge’s March Decision  

8.For the reasons set out in a Decision dated 26 March 2019 (“the Judge’s March Decision”), the judge dismissed this application.

Summons before Court of Appeal

9.The applicant then filed a summons on 10 June 2019 in the Court of Appeal to appeal the Judge’s October Decision out of time.  It was supported by an affirmation which only said “I did not appeal in-time 14 days because of almost delay [sic]”. 

Discussion 

10.With respect, when the Judge held in his October Decision that he had no power under Order 59 rule 2B(1) RHC to extend time, the Judge appears to have overlooked Order 59 rule 2B(6) RHC (enacted in 2017) which provided that “the Court … may extend the period for making an application for leave to appeal before or after the expiry of the period” (emphasis added).

11.Consequently, the October order must be set aside.  On appeal, the Court of Appeal can make any order which the lower court could have made (Order 59 rule 10(1) RHC) on the applicant’s summons for an extension of time to seek leave to appeal the Judge’s August Decision.  The well-established matters to be taken into account when deciding whether to exercise the discretion to extend time are: (1) the length of delay; (2) whether there is a reasonable excuse for the delay; (3) the merits of the intended appeal; and (4) any prejudice to the other party.  

12.In the present case, the length of delay is not substantial.  However this is in the context of proceedings which the applicant had already substantially delayed in commencing.  One would therefore have expected an applicant to take all further steps without any further delay. Secondly, he has provided no satisfactory reasons for the delay.

13.Further, the intended appeal is without merits. The applicant’s case was succinctly summarized by the Judge in [1] – [5] of the Judge’s Decision ([2018] HKCFI 1924).  Even on his own case, the applicant’s dispute with the neighbour arose from a dispute over a private matter, and his father’s murderers had been convicted and sentenced.  The TCAB had found no evidence showing that the political parties AL or PBCP were interested in harassing the applicant who had only been a low level BNP member, and there was no evidence indicating the people who had allegedly abducted him were acting on behalf of state authorities. In any event he had successfully relocated to Dhaka where he lived and worked without incident. He was also able to depart from Bangladesh on his own passport with no difficulty.  The TCAB concluded that the applicant had failed to make out a case for non-refoulement protection under any of the applicable grounds and the Judge’s reasons in paragraphs [13] – [18] of the August Decision are unassailable:

“13.     Here the applicant did not make any application for extension or provide any reason for his delay other than that he was not aware of the requirement to do so within three months which can never be accepted as a good reason, and it would be necessary for me to see whether there are other factors which may constitute a good reason for extending time, and the most obvious one in these sorts of cases would be the merits of the substantive applications as illustrated by the proposed grounds which the applicant intends to rely upon for his application.

14.     These are however all very broad and vague assertions of the applicant without much particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI in assessing police corruptions and effectiveness of authorities in protecting its citizens in Bangladesh, or how is the presence of state acquiescence relevant to his claim.  The applicant simply did not explain or elaborate. 

15.     His argument that he did report to the police after the first extortion telephone call but which the police failed to investigate does not in my view advance his case any further or get around the fact that there was no evidence other than his own speculation that PBCP-J or AL were involved as correctly found by both the Director and the Board on the facts and evidence before them.

16.     The fact is that once it has been established by both the Director and the Board that the risk of harms from those PBCP-J or AL people if real is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of Bangladesh, the Board was perfectly entitled to conclude that there is no justification for affording him non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.    

17.     In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

18.     For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason to extend time for his application, I accordingly dismiss his leave application.”

14.Accordingly, adopting the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11], we are not satisfied that there are any merits in the intended appeal. 

Order

15.For the above reasons, it would have been futile for the Judge to extend the time for an intended appeal which is devoid of merits, and the result would have been the same.  Accordingly, we dismiss the applicant’s summons to this court.

16.Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.

The applicant, unrepresented, acted in person.