Islam Md Zahirul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2086/2018

[2023] HKCFI 735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2086 OF 2018

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D E C I S I O N

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INTRODUCTION

1.This is the Applicant’s application by summons filed on 8 February 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 18 January 2023 (the “Order”) refusing his application for leave to apply for judicial review (the “Leave Application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 23 July 2018.

THE LAW

2.Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal the judge’s order to the Court of Appeal within 14 days after such order was made. In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and AW v Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success in the intended appeal; and

(4)  prejudice to the respondent if extension was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

3.By the time when the Summons was filed, the application was seven days out of time. The Applicant’s explanation for the delay is that he had never received the Order and Form CALL-1; and he only found from the internet that his Leave Application had been dismissed upon having been told by an immigration officer “to come and take documents from the court”. The delay is not very substantial. This Court would not take too critical a view as to the underlying reasons for the delay, if he could advance an arguable ground of appeal. That said, the Court notes that he still owes an explanation as to when he was informed by the immigration officer about the Order and why it took him seven more days to make this application.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

4.In his supporting affirmation, the Applicant said he had some objections against the Court’s decision. He raised two points.

5.First, he said that he had requested an oral hearing of his Leave Application. Presumably, his complaint is that this Court refused his Leave Application without an oral hearing. As a matter of law, an applicant does not have an absolute right to have his leave application determined in an oral hearing. The Court has discretion to make the determination on paper without a hearing if it is just to do so. As a matter of practice, most leave applications are determined on paper. As noted in Paragraph 4 of the Form CALL-1, contrary to his assertion, the Applicant had not requested an oral hearing. It was only after having duly considered the nature of the application and issues raised, the Decision, the papers and all the circumstances that this Court considered it appropriate that his Leave Application be determined on paper without a hearing.

6.Second, he repeated his claim that it is not possible for him to return to Bangladesh because of the threats from the Awami League. The basis of his claim for non-refoulement protection advanced before the Board were the threats from the Awami League and his moneylender. The Board rejected his evidence about the threats from the Awami League as incredible. As for the threat from the moneylender, the Board found even on the basis of his evidence the risk of harm was low because the moneylender had no intention to harm him. Hence, the Board found he had failed to discharge the burden of proving the factual basis of his claim to protection and dismissed his appeal. These are finding of facts solely for the Board. For reasons as explained in Paragraph 18 of the Form CALL-1, the court in a judicial review has no power to interfere with the finding of fact of the Board unless the finding is the result of errors of law, procedural unfairness or irrationality.

7.For reasons as explained in paragraph 20 and 21 of the Form CALL-1, after having rigorously examined the Decision with anxious scrutiny, this Court was satisfied that the Board’s Decision had not been tainted by errors of law, procedural unfairness or irrationality and hence refused his application for leave to apply for judicial review. Thus, by this ground of his intended appeal, the Applicant is in effect seeking to challenge this Court’s finding that the Board’s Decision had not been tainted by any of the above vitiating factor which is the sole ground for which this Court may review the Decision of the Board; but he has not provided any grounds for challenging this Court’s decision. This ground of appeal is also doomed to fail.

8.For all these reasons, the Applicant’s intended appeal has no prospect of success. In the circumstances, there is no need to consider the prejudice to the proposed respondent and to public administration if this challenge is allowed to proceed, though the prejudice is obvious.

CONCLUSION

9.Accordingly, the Applicant’s application for extension of time to appeal is refused.

The Applicant is not represented