Re Md Nahid
Read the full judgment text of CAMP 290/2019 on BabelCite. This Court of Appeal judgment was delivered on 18 September 2020.
1. On 30 July 2019, by way of a decision (“DHCJ Lam’s Decision”) set out in Form CALL-1 ( [2019] HKCFI 1902 ), Deputy High Court Judge Josiah Lam (“DHCJ Lam”):
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CAMP 290/2019 [2020] HKCA 774 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO. 290 OF 2019 (ON AN INTENDED APPEAL FROM HCAL NO. 938 OF 2018) _______________
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_______________ J U D G M E N T _______________ Hon Au JA (giving the Judgment of the Court): Introduction 1.On 30 July 2019, by way of a decision (“DHCJ Lam’s Decision”) set out in Form CALL-1 ([2019] HKCFI 1902), Deputy High Court Judge Josiah Lam (“DHCJ Lam”):
2.For convenience, we will refer to the first part of DHJC Lam’s Decision as the “First Part of DHCJ Lam’s Decision” and the second part of it as the “Second Part of DHCJ Lam’s Decision”. 3.On 8 August 2019, the applicant took out a summons (“the CFI Summons”) requesting for “time extension for the leave to be granted”. In the affirmation in support, he deposed that he wanted to appeal the order made by DHCJ Lam on 30 July 2019, and that he believed he had “good grounds of appeal”, without specifying what those grounds were. He further deposed that he was a genuine non-refoulement claimant who “faced all these dangerous problems and harassment and torture” in his home country, and he fled abroad to save his life. He also said he “believes this Director of Immigration and the Adjudicator of Appeal Board reached the wrong decision in assessing his USM claim”. He said he would invite them to “tour [his] country and ask those familiar with his case what real danger [he] would face if I am returned there”. 4.The CFI Summons was heard before DHCJ Bruno Chan on 5 September 2019. The applicant did not appear at the hearing. By way of a decision dated 4 November 2019 (“DHCJ Chan’s Decision”), DHCJ Bruno Chan refused to grant leave to the applicant [2019] HKCFI 2491. In DHCJ Chan’s Decision, the learned judge treated the CFI Summons as an application for leave to appeal only against the First Part of DHCJ Lam’s Decision. He refused to grant leave as the applicant had failed to provide any good explanation for the delay in bringing the judicial review and that the intended appeal had no merits since the applicant had failed to raise any proper grounds in support of it. 5.By a summons dated 15 November 2019 (“the CA Summons”), the applicant sought leave from the Court of Appeal to appeal DHCJ Lam’s Decision, although in his supporting affirmation, he listed DHCJ Chan’s Decision as the decision under challenge. 6.Before we consider the CA Summons, it is necessary to first clarify some procedural matters. 7.In relation to the First Part of DHCJ Lam’s Decision, under the law as it then stood, the applicant was required to obtain leave under section 14AA of the High Court Ordinance (Cap 4) before he could appeal against that part of DHCJ Lam’s Decision. 8.However, on 14 July 2020, the Hong Kong Court of Final Appeal handed down the decision of H v Director of Immigration [2020] HKCFA 22, holding that leave under section 14AA is no longer required for an appeal against the refusal to grant extension of time to apply for judicial review in non-refoulement cases. An applicant therefore can now appeal as of right in those cases but should still comply with the time limit as prescribed under Order 53, rule 3(4) of the Rules of the High Court (“the RHC”). Thus, when the applicant took out the CA Summons, he was out of time to do so as of right. 9.In the circumstances, we will treat this application insofar as it relates to the First Part of DHCJ Lam’s Decision as the applicant’s application to appeal out of time against that. 10.In relation to Second Part of DHCJ Lam’s Decision, under Order 53, rule 3(4) of the RHC, he had 14 days from the date of DHCJ Lam’s Decision to appeal as of right against that. Thus, at that time when he took out the CFI Summons before DHCJ Bruno Chan, he was in fact within time to appeal that part of DHCJ Lam’s Decision as of right. However, by the time of the CA Summons, he was already out of time to do so. We will therefore treat this renewed application also as an application to appeal out of time against the Second Part of DHCJ Lam’s Decision. 11.In short, this renewed application will be regarded as a renewed application to appeal out of time against DHCJ Lam’s Decision as a whole. Background 12.The applicant is a national of Bangladesh. He entered Hong Kong on 22 May 2006 as a visitor and was permitted to stay until 5 June 2006. He overstayed and was arrested on 30 August 2007. He lodged a torture claim on 8 September 2007. 13.The applicant’s claim was based on the fear that, if he was refouled to Bangladesh, he would be harmed or killed by members of the Awami League (“AL”) and the Bangladesh Nationalist Party (“BNP”) because he refused to join them. The factual background was summarized at paragraph 13 of the Director’s decision dated 16 July 2014 (“the Director’s First Decision”) and paragraphs 7 - 8 of the Board’s First Decision. 14.Briefly stated, the applicant claimed that he had a group of friends including one named Mollah. All of them belonged to the student wing of AL. In 2006, a national election was coming up and his friends split into two groups, with half of each joined AL and BNP respectively. The applicant remained neutral because his family did not like politics. Nevertheless, his friends from both parties threatened and attacked him for his refusal to join them. Mollah also demanded him to join AL or else he would face a “big problem” although Mollah did not specify what the problem would be. Out of fear, he fled to Hong Kong. Decisions of the Director and the Board 15.In the Board’s First Decision, the Board upheld the Director’s First Decision, which dismissed the applicant’s non-refoulement claim on BOR 3 risk[1], persecution risk[2], and torture risk[3]. 16.On 14 May 2018, after hearing the applicant, by way of the Board’s Second Decision, the Board dismissed the applicant’s appeal against the Director’s decision dated 10 January 2017 (“the Director’s Second Decision”) which covered the assessment of the applicant’s claim on BOR 2 risk[4]. The Board did not accept that after more than 12 years his friends were still looking for him. In any event, internal relocation was available to the applicant (paragraph 13 of the Board’s Second Decision). DHCJ Lam’s Decision 17.On 25 May 2018, the applicant filed his Form 86 seeking leave to apply for judicial review against the Board’s Second Decision. He also included the Board’s First Decision as a decision under challenge at the date of the hearing. Nevertheless, the grounds in his supporting affirmation only targeted the Board’s Second Decision[5]. The grounds of review were succinctly summarized by DHCJ Lam at paragraphs 27 - 32 of DHCJ Lam’s Decision:
18.After hearing the applicant and reviewing the documents, DHCJ Lam refused to grant extension of time to the applicant to apply for judicial review against the Board’s First Decision given the unexplained long delay and lack of specific grounds challenging that decision (See [41] ‑ [44] of DHCJ Lam’s Decision). He also refused to grant leave to the applicant to apply for judicial review against the Board’s Second Decision for lack of merits of the grounds of challenge (See [46] - [61] of DHCJ Lam’s Decision). He set out his reasons at paragraphs 37 - 63 of DHCJ Lam’s Decision (footnote omitted):
The CA Summons 19.In support of the CA Summons, the applicant set out two grounds in the supporting affirmation that (a) DHCJ Bruno Chan was wrong in law in holding that there was no state acquiescence or involvement and (b) DHCJ Bruno Chan failed to provide detailed reason in support of his decision. Other than that, he did not identify any errors in DHCJ Lam’s Decision. 20.In his written submissions dated 24 December 2019[6], he advanced the arguments in support of the two grounds: for the first ground of appeal, he quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277[7] and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non-refoulement claim and, for the second ground of appeal, from The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243; and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 on the decision maker’s “duty to act fairly.” Legal principles 21.As mentioned above, under Order 53, rule 3(4) of the RHC, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted. 22.Generally, an applicant must at least show that there is a reasonable prospect of success before extension of time is granted even when the delay is excusable. When the delay is inexcusable, the applicant must further show a real prospect of success before the court will consider granting an extension of time: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256. 23.In assessing the prospect of success of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases discussed in 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]. 24.For the purpose of this application, we only need to highlight the following salient principles:
Discussion 25.In relation to the delay, we note that the applicant was in fact within time to appeal DHCJ Lam’s Decision as of right when he first took out CFI Summons. In light of the change of law regarding whether he was required to obtain leave to appeal as mentioned above, we are prepared to accept that the applicant’s delay in appealing DHCJ Lam’s Decision is excusable. Thus, we will now turn to consider whether his intended appeal has a reasonable prospect of success. 26.In our view, the applicant failed to show that his intended appeal has any prospect of success, let alone a reasonable one. 27.First, the applicant has failed to advance any grounds of appeal against DHCJ Lam’s Decision. In the premises, the intended appeal is bound to fail. 28.Second, the two grounds stated in the supporting affirmation are also without any substance. The applicant’s complaint in relation to DHCJ Bruno Chan’s finding on state involvement is misplaced. DHCJ Bruno Chan was concerned with whether DHCJ Lam was correct in refusing to grant extension of time to apply for judicial review against the Board’s First Decision. He was not required to make any findings in relation to state involvement or acquiescence, which was within the province of the primary decision makers, ie, the Director and the Board. There is simply no question of DHCJ Bruno Chan erring in law in this respect. This is not a viable ground of appeal. Meanwhile, DHCJ Bruno Chan had given a thorough analysis of why the applicant’s intended appeal had no prospect of success. It is therefore misconceived to argue that his decision did not have detailed reasons. 29.Insofar as his written submissions are concerned, they are equally devoid of substance. The arguments therein only related to general principles and complaints directed at the Director and the Board, which had been properly addressed in DHCJ Lam’s Decision. As mentioned above, the applicant has not identified anything in this appeal to demonstrate why DHCJ Lam was wrong in his reasons. These authorities therefore do not assist the applicant in this appeal. 30.In any event, if the above grounds are all directed at DHCJ Lam’s Decision, after reviewing it, we are of the view that DHCJ Lam was plainly right in his detailed reasons in refusing to grant extension of time to the applicant to apply for judicial review against the Board’s First Decision and in refusing to grant leave to the applicant to judicially review the Board’s Second Decision. 31.The intended appeal therefore has no merits at all. Accordingly, we dismiss the CA Summons. We further make no order as to costs.
The applicant acting in person [1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). [2] This refers to the 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. [3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115). [4] This refers to the risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). [5] See page 2 of the applicant’s affirmation filed in support of his Form 86. [6] The applicant was first directed by the Registrar of Civil Appeal on 18 November 2019 to file his written submissions by 4 December 2019. He failed to do so. On 5 December 2019, the Registrar gave an extension to him to lodge his written submissions by 4pm 23 December 2019, and further directed that he should be barred from lodging any written submissions if he failed to do so. However, on 6 December 2019, the applicant wrote to the Registrar saying that he was in the process of applying for legal aid and asked for another 2 - 3 months to lodge his written submissions. The Registrar did not reply to that request. At the end of the day, the applicant filed his written submissions on 24 December 2019, a day after the extended deadline. Given the shortness of the delay, we are prepared to take into account the written submissions for the purpose of the CA Summons. [7] The correct name of the case should be ST v Betty Kwan. |
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