RE PALASH BAKCHI

CAMP 574/2021

[2022] HKCA 1847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 574 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 920 OF 2019)

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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):

1.  On 13 January 2021, DHCJ P. Li (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time. He filed a summons in the Court of First Instance on 13 May 2021 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 15 September 2021.

3.  On 20 December 2021, the applicant filed a summons in CAMP 574/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 20 December 2021, the applicant lodged his written submissions on 3 January 2022.

5.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing. We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Bangladesh. He entered Hong Kong illegally on 23 March 2009 and was arrested by the police on the same day. On 26 March 2009, he lodged a torture claim under Part VIIC of the Immigration Ordinance (Cap.115). His torture claim was rejected by the Director on 28 October 2011 and the appeal was rejected by the Board on 29 November 2011. Subsequently, he applied for leave to apply for judicial review of the Board’s decision dated 29 November 2011 and it was refused by the Court of First Instance on 5 February 2013.

7.  On 8 October 2014, the applicant lodged his non-refoulement claim alleging that if refouled, he will be killed by Awami League (“AL”) people due to his affiliation with Bangladesh Nationalist Party (“BNP”). He also claimed that he will be killed by Muslims due to his minority Hindu religion. The factual background of this case was succinctly summarised by the Judge at [5] – [8] of the JR Decision ([2021] HKCFI 74).

8.  By a Notice of Decision dated 27 April 2017, the Director of Immigration (“the Director”) had decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], and the persecution risk[3].

9.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”). The applicant attended an oral hearing on 27 November 2017. By its decision dated 4 March 2019, the Board dismissed the appeal and confirmed the Director’s decision. For the reasons set out at [45] to [54], the Board found that even if it were accepted that the applicant and his family might have experienced some difficulties caused by religious conflicts between Hindus and Muslims in his home village, the difficulties were not so severe as to force him to flee Bangladesh. As the applicant was not a member of BNP but a mere supporter, the Board did not believe that he was persecuted or targeted by members of AL, and the alleged problem faced by the applicant was unrelated to any political considerations. Further, the applicant did not suffer any injury during the incidents. The assertions that his family members were attacked and his family home was looted and burned by a mob of after he left Bangladesh were hearsay. In view of the fact that the applicant has been away from the country for over 12 years, the risk of harm upon his return was considered to be low. Further, relevant country of origin information (“COI”) suggests that there is reasonable state protection, and internal relocation is a viable option. For the aforesaid reasons, his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.  On 4 April 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s decision. In his supporting affirmation, he said he sought to judicially review the Director’s and the Board’s decisions as they failed to realize his problem and just cancelled his claim.

The JR Decision

11.  Upon the applicant’s request, an oral hearing was fixed for 24 November 2020, however, he was absent from the hearing. Accordingly, the Judge disposed of the application on paper. After due consideration of the Board’s decision, the Judge refused leave for judicial review for reasons set out in [37] - [39] of the JR Decision:

“37. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB and the Director. The applicant had not made specific complaint of any error in the decisions of the TCAB and the Director.

38. In substance, the adjudicator disbelieved the applicant. He was not persuaded that the applicant would be subject to ill-treatment in future given the overall evidence.

39. In my judgment, there is no error of law or procedure. The decisions are reasonable.”

Application for extension of time to appeal the JR Decision

12.  As mentioned earlier, the applicant failed to file a notice of appeal within time. He filed a summons in the Court of First Instance on 13 May 2021 for an extension of time to appeal. That was dismissed by the Judge on 15 September 2021. Hence, the Summons to this court.

Discussion

13.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

14.  As for (1), the applicant was late by about 3.5 months between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance. His delay was substantial.

15.  As for (2), the reasons for the delay, the applicant explained in his summons that he did not receive the JR Decision. However, the court file showed that JR Decision was sent to his last reported address on 13 January 2021 (the same day the JR Decision was handed down) and there was no return of mail. There is no good reason for the delay.

16.  The most important consideration is (3) the prospect of success of the intended appeal against the JR Decision.

17.  In the Summons and supporting affirmation filed in this Court, the applicant had failed to provide any ground of his intended appeal against the JR Decision. In his written submissions, he reiterated the background of his case and that even though he had told his problem to the Director and the Adjudicator, his case was rejected. He alleged that the Judge had wrongly considered that there was no error in the Director’s and the Board’s decisions. He further complained that the duty lawyer did not help him and was “a statue”. He urged this Court to grant him leave to appeal.

18.  The applicant had failed to pinpoint any error in the JR Decision, and his written submissions showed nothing more than general dissatisfaction with the JR Decision. Nothing mentioned therein can be construed as a valid ground of appeal.

19.  It is perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds. As with the Judge, we do not see any in this case.

20.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

21.  As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 20 December 2021.