RE SHAB UDDIN

CAMP 109/2023, [2024] HKCA 360

On Appeal From [2022] HKCFI 3654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 109 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1063 OF 2019)

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J U D G M E N T

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

1.  On 17 March 2023, the applicant took out a summons to reapply for extension of time to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 7 December 2022 ([2022] HKCFI 3654)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review.  On 9 March 2023, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2023] HKCFI 563)  (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 12 April 2019 refusing to exercise its discretion to allow the applicant’s late filing of the notice of appeal / petition against the decision of the Director of Immigration (“the Director”)  dated 2 August 2017 rejecting the applicant’s non-refoulement claim on the applicable ground of BOR2 risk[1].

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Bangladesh.  He last arrived in Hong Kong on 1 November 2009 but was refused permission to land.  On the same date, he raised a torture claim, which was later taken to be non-refoulement claim on 3 March 2014, on the basis that he would be harmed or killed by members of the Awami League (“AL”)  because of his previous involvement with the Bangladesh Nationalist Party (“BNP”).

5.  By a Notice of Decision dated 24 March 2015 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds including risk of torture[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s 1^st Decision to the Board.  On 5 May 2017, the Board dismissed the applicant’s appeal, and confirmed the Director’s 1^st Decision (“the Board’s 1^st Decision”).  In essence, the Board found that the applicant had exaggerated his facts; that even on his own facts, he had never been physically assaulted or ill-treated by the man he called his main enemy; that state protection was available to him and that internal relocation was a viable option if there was any risk if refouled.

7.  By a Notice of Further Decision dated 2 August 2017, the Director dismissed the applicant’s non-refoulement claim on the basis of the BOR2 risk (“the Director’s 2^nd Decision”).

8.  The applicant filed his Notice of Appeal against the Director’s 2^nd Decision to the Board on 4 April 2018. By that time, he was already late by 7 months and 17 days.[5] In the applicant’s Notice of Appeal, he only alleged that he received the Director’s 2^nd Decision on 28 March 2018.

9.  On 12 April 2019, the Board refused to exercise its discretion to allow the applicant’s late filing of the Notice of Appeal.  In particular, the Board rejected the applicant’s bare assertion that he only received the Director’s 2^nd Decision on 28 March 2018 as there was no document to support such assertion.  The Board also considered, inter alia, that there were no special circumstances to show that it was unjust and inequitable not to allow his appeal and that there had been inordinate delay on the applicant’s part.

10.  Meanwhile, the applicant filed an application to apply for leave to apply for judicial review against the Board’s 1^st Decision, which was dismissed by Deputy High Court Judge Woodcock on 4 May 2018 ([2018] HKCFI 875).

11.  On 18 April 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s 2^nd Decision.  In the Form 86, he alleged that the Board to be procedurally unfair in its decision.  The grounds advanced by the applicant in his supporting affirmation were summarised by the Judge at [15] of the Leave Decision:

“15. In his affirmation in support of his application, the applicant set out his grounds, which I shall summarize below.

(1)  He was not legally assisted.

(2)  There was no oral hearing for him.

(3)  The Board had relied on the source of news which is not officially recognized or it is simply hearsay. The cases it relied upon are outdated. It is the Board’s speculation that it would be safe for him to return his country.

(4)  He considers that the Board had reached the wrong decision. The Adjudicator should have visited his country in order to familiarize himself with the situation there.”

12.  On 27 September 2022, the applicant failed to attend the oral hearing before the Judge.  Accordingly, the Judge considered and determined his application for leave to apply for judicial review on paper.

THE JUDGE’S DECISION

13.  On 7 December 2022, the Judge refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [16] - [22] of the Leave Decision:

“16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The real issue for this Court is whether the Board’s Second Decision of refusing to grant time for the applicant to file his notice of appeal against the Director’s Second Decision is correct.

17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18. The Board had considered the applicant’s case in its First Decision, which covers Torture risk, BOR 3 risk and Persecution risk. The court had considered the applicant’s application for leave to apply for judicial review of the Board’s First Decision and rejected his application, having considered the merits of his case.

19. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

‘59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017)  64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016)  at [52].’

20. Those grounds set out in paragraph 15 above are not relevant and they are not valid reasons to challenge the Board’s Decision.

21. Although the Board did not expressly say that it had considered the merits of the case before it determined not to extend time to the applicant to file his notice of appeal, this issue becomes irrelevant in view of the decision of the Court of Appeal’s case above.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

14.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

15.  On 14 February 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was over 2.5 months late with his intended appeal.

16.  On 9 March 2023, the Judge refused the applicant’s application for extension of time to appeal against the Leave Decision.  The Judge considered that the applicant raised no valid reason to show that he had any realistic prospect of success in his intended appeal.

THIS APPLICATION

17.  By a summons and a supporting affirmation filed on 17 March 2023 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, he craved for leave to advance a new sole ground of appeal without specifying any details. In his supporting affirmation, he asserted that he was not aware of the 14-day limit for filing his appeal and that he was unrepresented.  He claimed that he did not receive any decision made by the High Court and that the Leave Decision was unfairly reached without allowing him the opportunity to clarify his case and his country’s situation.

18.  Pursuant to the directions of the Registrar of Civil Appeals dated 17 March 2023, the applicant lodged his written submissions on 31 March 2023.  In those submissions, he cited various case authorities and legal propositions on the “high standard of fairness” and procedural fairness without specifying how those general principles applied to his case.

DISCUSSION

19.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

20.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

21.  The Court of Appeal’s approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

22.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

23.  In our view, the applicant’s delay of over 2.5 months is substantial and inordinate.  As noted by the Judge, according to the court’s record, the court sent the Leave Decision to the applicant at his last known address and it was never returned form the Post Office.  Further, ignorance of the legal procedure is not a valid reason for his substantive delay.  Accordingly, the applicant has failed to give any good reason to explain his delay.

24.  Furthermore, there is also no substance in the applicant’s complaints. The applicant had ample opportunities to present his case and his country’s situation before the Judge.  In particular, an oral hearing was fixed and held before the Judge for his application for leave to apply for judicial review but the applicant failed to attend without providing any reason.  Accordingly, there is no basis for his complaint that the Leave Decision was reached unfairly.  There is also no legal basis for any contention that he was or is entitled to legal representation at either stage of the proceedings.  See: Re Zunariyah[2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Tariq Farhan[2018] HKCA 17; and Re Lopchan Subash[2018] HKCA 37.

25.  More importantly, the assertions made by the applicant are all vague, general and bare allegations unsupported by any particulars.  He failed to specify how the Judge had erred in the Leave Decision.  His submissions are not proper grounds of appeal and must fail.  We see no basis to interfere with the Leave Decision.

26.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

27.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 17 March 2023 is dismissed.