Re Sheik Razaul

CAMP280/2019

[2021] HKCA 321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 280 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 162/2018)

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J U D G M E N T

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The Court:

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam (“judge”) given on 25 June 2019 refusing leave to the applicant to apply 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 (“Board”) dated 16 June 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 23 September 2014 and 8 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh.  He entered Hong Kong on 19 October 2006 as a visitor and was permitted to remain until 2 November 2006.  He overstayed and was arrested on 24 March 2007.  He lodged a torture claim on 4 January 2010. 

3.The applicant’s claim was based on threats from members of an opposing political party. The details of the applicant’s claim have been summarised by the Board at [14] to [47] of its decision dated 16 June 2017.

4.By a Notice of Decision dated 23 September 2014 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.By a Notice of Further Decision dated 8 February 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 15 March 2017, the Board dismissed the appeal on 16 June 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

First application for leave for judicial review: HCAL 397/2017

7.On 13 July 2017, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  DHCJ Woodcock found that none of the applicant’s grounds was reasonably arguable and dismissed the application on 26 January 2018. 

8.The applicant did not appeal against the refusal of leave in HCAL397/2017.

Second application for leave for judicial review: HCAL 162/2018

9.Instead, on 5 February 2018, the applicant made a second application in HCAL162/2018 to apply for judicial review against the same Board decision.  The applicant did not inform the court or the registry of his failed attempt in HCAL 397/2017.

10.The judge dismissed the application for leave to apply for judicial review in HCAL162/2018 on 25 June 2019.  The judge held that that it was an abuse of process for the applicant to re-litigate his case by bringing a second judicial review in respect of the same Board decision.

Application for extension of time to appeal

11.The applicant was late in bringing the intended appeal against the judge’s decision dated 25 June 2019.  On 15 July 2019, the applicant applied for extension of time to appeal which was dismissed by DHCJ Bruno Chan on 4 November 2019.

12.On 7 November 2019, the applicant sought leave to appeal against the decision by DHCJ Bruno Chan on 4 November 2019.  In the summons and affirmation filed on 7 November 2019, the applicant claimed that he did not get the judgment (understood to mean the CALL-1 Form dated 25 June 2019) in time so he failed to bring the intended appeal within time.

13.In the written submission lodged on 27 November 2019, the applicant explained why it is unsafe for him to return.  He contended that the Director and the Board did not investigate his problems properly.

14.Those grounds do not address the reasons given by the judge in the CALL-1 Form dated 25 June 2019 for dismissing his application.  

Discussion

15.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

16.The applicant did not disclose to the judge a previous unsuccessful application for leave to judicial review against the same Board’s Decision before DHCJ Woodcock in either his Form 86 or supporting affirmation.  This amounts to an abuse of process and thus the intended appeal should be struck out: Bepary Shahealom v Torture Claims Appeal Board[2018] HKCA 763, per Lam VP at [22]; Khan Kamran v Torture Claims Appeal Board [2020] HKCA 380; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1].  On this basis alone, this application should be dismissed (Nahid Mohammad [2020] HKCA 735, per Au JA).

17.The applicant did not identify any error on the part of the judge.  The applicant has therefore failed to show that his intended appeal has a real prospect of success.  There is simply no ground for this court to intervene the judge’s decision.

18.In the circumstances, the applicant’s intended appeal has no merits at all and it would be futile to extend time.  Accordingly, we dismiss the applicant’s summons of 7 November 2019.

The applicant acting in person