RE MASUM

CAMP 98/2018

[2018] HKCA 681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 98 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 50 OF 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  By summons filed on 4 July 2018, the applicant applies for leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 11 August 2017 refusing him leave to apply for judicial review. The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 15 February 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 12 August 2015 and 27 October 2016 rejecting his non-refoulement claim.

2.  Under Order 59 rule 2A and rule 14A(1) of the Rules of the High Court, Cap. 4A, 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, pursuant to Order 59 rule 2A(5)(a).

3.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally and was arrested by the police on 11 October 2012.  On 13 October 2012, he raised a claim for non-refoulement protection.

4.  The applicant’s non-refoulement claim is based on his fear that if he were to return to Bangladesh, he would be harmed or killed by (1) a group of four or five men because he had witnessed them murdering a leader of the Bangladesh Nationalist Party (BNP) called Mamun; and (2) Mamun’s family who thought the applicant was involved in the murder. 

5.  The background of the applicant and the facts of his claim had been set out by the Director and the Board in their decisions, and summarised by the Judge in [2] to [5] of the Form CALL-1 dated 11 August 2017.  We will not repeat them here.

6.  The Director assessed the applicant’s non-refoulement claim on all applicable grounds namely, torture risk^[1], BOR 3 risk^[2], BOR 2 risk^[3] and persecution risk^[4].  By Notice of Decision dated 12 August 2015 and Notice of Further Decision dated 27 October 2016, the Director rejected the applicant’s claim.

7.  The applicant appealed to the Board against the Director’s decision.  An oral hearing took place on 19 December 2016, at which the applicant elected to give oral evidence.   By a decision dated 15 February 2017, the Board dismissed the applicant’s appeal. 

8.  The Board found on the applicant’s submitted facts that (1) he had never been assaulted by either Mamun’s assailants or family, let alone having suffered any physical or mental injury that had reached the minimum level of severity as defined by the law; (2) there was no involvement of the Bangladeshi government or public official nor was there any clue of state acquiescence, active or passive; and (3) the applicant admitted at the oral hearing that he fled to Hong Kong to avoid arrest because he was a suspect of a murder case.  The Board went over the relevant COI and was of the view that state protection and internal relocation were reasonably available to the applicant.  In addition, having considered the applicant’s testimony and responses to the Board’s questions at the hearing, the Board did not find his claim reliable.  The Board concluded that the applicant’s fear of being tortured, persecuted or arbitrarily deprived of life was unfounded and, he had failed to satisfy the legal requirements for establishing any of the torture risk, BOR 3 risk, BOR 2 risk or persecution risk grounds. 

9.  On 23 February 2017, the applicant filed his Form 86 together with a supporting affirmation applying for leave to judicially review the decisions of the Director and of the Board.  He requested an oral hearing which took place on 3 August 2017.  

10.  The Judge refused to grant leave to apply for judicial review and gave her reasons at [12] to [17] of the Form CALL-1 as follows:

“ 12. I have considered with rigorous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully, logically and with caution. The applicant’s complaints in the affirmation against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

13. I found no substance in the grounds of this application. What was in the supporting affirmation does not cover all the grounds set out nor are they substantiated. For example, in the hearing before the adjudicator there is no record of any complaint from the applicant about his previous legal representation and his confusion. An interpreter was provided and at the applicant’s disposal; he confirmed he understood the procedure at the hearing.

14. The adjudicator in his decision does refer to COI material he assessed and examined. It was very relevant and up-to-date. The applicant’s criticism here is, as it is with most, a bare assertion. The applicant did add in the hearing before me that the Director and the adjudicator failed to properly research and make enquiry into the corruption of the police in Bangladesh; this was the reason he felt he had to run away. He knew his accusers had money to pay bribes to the police which meant he would not be treated fairly.

15. It is clear from the papers the COI material was examined with corruption in mind before conclusions were drawn. It was also considered relevant that neither the applicant nor his family had sought police assistance and experienced a failure to discharge its duties lawfully. Reasonable State protection was found to be available to the applicant.

16. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

17. In my judgment, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

11.  The 14-day period for the applicant to appeal against the Judge’s decision expired on 25 August 2017^[5].  On 4 July 2018, the applicant took out the present summons seeking leave to appeal out of time.

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016).

13.  In the present case, the applicant was late by almost 12 months, which is a very serious delay.  The applicant explained in his affirmation filed on 4 July 2018 that he had never received the Form CALL-1 and the Order of the Judge’s refusal of leave to apply for judicial review, and he only learnt of the decision upon doing a search of the court file.  There was no record before us showing that the Form CALL-1 and the Order posted to the applicant’s last known address had been returned undelivered or unclaimed.  The applicant did not state in his affirmation that he had moved home.  In the circumstances, we have reservations as to the explanation given by the applicant for the delay.

14.  Nevertheless, we will consider the prospects of the intended appeal against the Judge’s decision, which is a crucial consideration in an application to extend time: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226. 

15.  The applicant has not given any grounds for his intended appeal in the Summons and his supporting affirmation.  He has not filed any draft Notice of Appeal.  In compliance with the Registrar of Civil Appeals’ direction, the applicant lodged a written submission on 23 July 2018.  It is a 3-page document which is a translation of a 2-page “First Information Report” and a 1-page letter of complaint addressed to the Bangladeshi police.  They relate to the complaint made by a Nasima Begum of an attack on her son Mijanur Rahman that took place on 30 March 2012.  It is not clear what is the relevance of the document to the applicant’s claim, his present application for leave to appeal and his intended appeal.

16.  The applicant having not put forward any ground for his intended appeal, it has not been shown that his intended appeal has any prospect of success.  This being the case, it would be futile to extend the time for appealing.  Accordingly, we refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.

17.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.