Re Azizul Rari

CAMP140 /2023, [2024] HKCA 44

On Appeal From [2022] HKCFI 2737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 140 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2179 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1) Renewed application for extension of time to appeal

1.On 10 October 2018, the applicant issued his application for leave for judicial review by Form 86 in HCAL 2179/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 24 September 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 21 April 2017 rejecting his non-refoulement claim. Deputy High Court Judge KW Lung refused to grant leave for judicial review on 14 September 2022.

2.Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 28 September 2022). Being out of time for over two and a half months, the applicant took out an application on 5 December 2022 before the Judge requesting an extension of time to appeal. The Judge on 17 January 2023 rejected the applicant’s application for extension of time to appeal.

3.On 3 April 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing. Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2) Factual background

5.Briefly stated, the applicant is a Bangladesh national. He left Bangladesh in July 2012 to work in the Mainland. He entered Hong Kong illegally via the Mainland on 21 March 2014. He raised his non-refoulement claim on 23 March 2014 alleging that he would be harmed or killed by the members of the Awami League because he was a member of the rival Bangladesh Nationalist Party.

3) The Director’s Decision

6.The Director decided against the applicant’s non-refoulement claim on 21 April 2017. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4) The Board’s Decision

7.The applicant appealed against the Director’s Decision to the Board. An oral hearing was conducted on 3 September 2018. The Board dismissed the applicant’s appeal on 24 September 2018 and the Director’s Decision was affirmed. The Board held that the applicant was attacked on one occasion but managed to escape, and he did not sustain any serious injury. On a second occasion, the applicant was assaulted but he again managed to escape and suffered only bruises and swelling to his limbs. The applicant returned to his village to live after both attacks which clearly reflected how the applicant viewed the seriousness of the attacks and possible future attacks. On two other occasions the applicant was merely threatened. The Board held that the Awami League was not very serious in their alleged intent to kill the applicant. The applicant did not hold a significant position in his party. The applicant’s alleged level of ill-treatment did not meet the necessary level of severity. The applicant failed on all applicable grounds for non-refoulement. State protection and internal relocation were available.

5) Decisions of the Judge

8.In his decision dated 14 September 2022, the Judge held that no valid ground for challenging the Board’s decision was stated in the applicant’s Form 86 or affirmation. The applicant already had the assistance of duty lawyer at the screening stage. There was no error of law or procedural unfairness.

9.In his decision dated 17 January 2023, the Judge held that the applicant refused to answer questions from the Board. The Board arrived at its decision based on the evidence. There was no realistic prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6) Legal principles

10.In considering whether to extend time for appeal, the Court will have regard to :

(1) length of the delay;

(2) reasons for the delay;

(3) prospect of the intended appeal; and

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

7) Analysis

(1) Length of delay and reasons for the delay

11.Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

12.The Form CALL-1 decision was handed down on 14 September 2022. The deadline for the appeal was 28 September 2022. The applicant was more than two and a half months late when he filed his extension of time to appeal application on 5 December 2022. The applicant merely stated that he did not receive the decision and he did not agree with the decision.

(2) Prospect of the intended appeal

13.In the applicant’s summons and affirmation, he stated that he did not get the ‘High Court letter’ on time and he did not agree with the decision.

14.In our judgment, the applicant does not have any prospect of success in his intended appeal.

15.The applicant did not say when he received the decision below. The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

16.Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8) Disposition

17.As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 3 April 2023.

Applicant, unrepresented, acting in person