RE PRAMANIK BILLAL

CAMP 69/2018

[2018] HKCA 432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 69 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 354 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 21 May 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 9 March 2018 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 28 June 2017 dismissing his appeal against two decisions of the Director of Immigration (“the Director”) dated 10 September 2015 and 31 March 2017 rejecting his non-refoulement claim.

2.  By a memorandum dated 21 June 2018, the Director of Legal Aid gave notice that the applicant had made an application for legal aid.  On 25 June 2018, the Registrar of Civil Appeals directed that the stay of proceedings under section 15 of the Legal Aid Ordinance, Cap. 91 shall be lifted, having regard to the fact that the applicant’s previous application for legal aid made in the proceedings before the Judge had been refused. 

3.  Prior to this, the Registrar of Civil Appeals had on 25 May 2018 directed the applicant to lodge written submissions, but this was not complied with.  On 25 June 2018, the Registrar of Civil Appeals made an unless order that unless the applicant lodged his written submission on or before 11 July 2018, the present application would be referred to the Court of Appeal for consideration of appropriate sanction, including imposing an unless order with the consequence for default being the dismissal of the appeal.  Notwithstanding the unless order made by the Registrar, the applicant has not lodged any written submission to support his application.  In light of the applicant’s repeated non-compliance of the direction to lodge written submission, we consider he has no intention to put in any written submission, and will proceed to consider his application on the basis of the materials before us.  

4.  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).

5.  The applicant is a Bangladesh national who entered Hong Kong illegally.  He was arrested by police on 19 August 2013.  He raised a non-refoulement protection claim on 4 September 2013.  He lodged the claim form on 20 July 2015 and later attended a screening interview, both with the assistance of lawyer assigned by the Duty Lawyer Scheme.    

6.  The applicant’s claim is based on his fear that if he were to return to Bangladesh, he would be seriously harmed or killed by members or supporters of the Awami League (“AL”) because he was a member of Bangladesh Nationalist Party (“BNP”) and refused to join AL. 

7.  According to the applicant, he joined Chatra Dal, a student wing of BNP, in mid-June 2011.  Shortly after that, he was confronted by five unknown men and asked to join AL.  They threatened to kill him if he refused.  The applicant said he would think it over, and the men then left.  After discussing the matter with his friend, Karim, the applicant went to make a report to the police, but they refused to deal with the matter and asked him to go away.  That same afternoon, Karim was beaten to death by seven to eight people.  A fellow village man of Karim warned the applicant to leave home because Karim’s assailants said they would go after him and kill him as well.  The applicant escaped to Dhaka, where he worked and lived in a garment factory until December 2011.  During this period, people of AL went to his home to look for him, and assaulted his father and vandalised his home.  When he knew that people of AL went to his factory to look for him, the applicant left to stay with his friend in Gulistan, some 45 minutes from the factory he worked.  In June 2012, on learning that people of AL were looking for him near his friend’s home, he moved to live with his uncle whose place was about one hour away by car.  He stayed there until July 2013 when he was advised by his parents and uncle to leave the country.  He left Bangladesh for mainland China on 21 July 2013, and eventually sneaked into Hong Kong in August 2013.

8.  The Director rejected his non-refoulement claim on 10 September 2015 having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3].  The applicant lodged an appeal against the Director’s decision to the Board on 17 September 2015.

9.  By letter dated 7 March 2017, the Director invited the applicant to submit additional information relevant to a BOR 2 claim[4]. The applicant did not respond to the invitation.  The Director proceeded to assess the applicant’s case under the BOR 2 risk ground on the basis of the information and materials that were previously submitted by the applicant.  By a further decision dated 31 March 2017, the Director decided against the applicant on the BOR 2 risk ground.  

10.  The applicant’s appeal to the Board was heard on 13 June 2017. The Board considered the appeal on all applicable grounds, including BOR 2 risk.  By a decision dated 28 June 2017, the Board dismissed the applicant’s appeal. 

11.  The Board considered there were many inherent discrepancies and contradictions in the applicant’s claim, and was of the view that the applicant’s credibility was questionable to the extent that no weight could be attached to his evidence in relation to events he claimed to have been present or to have personally witnessed.  The Board did not accept that he had given a truthful or reliable account of the events that occurred in the past in Bangladesh.  In particular, the Board did not accept he was a member of Chatra Dal or he had suffered any ill-treatment in Bangladesh.  The Board found he had failed to establish he would face a genuine or substantial risk of being subjected to serious harm or ill-treatment of any sort, or he would be arbitrarily deprived of his life, if he were to return to Bangladesh, or that his fear of persecution was well-founded. 

12.  The applicant filed his Form 86 on 4 July 2017 together with a supporting affirmation.  The applicant had not given any grounds for his application in either document.  He merely said in his affirmation that he wanted to judicially review the 28 June 2017 decision of the Board.   

13.  The Judge refused to give leave to apply for judicial review after holding an oral hearing.  The Judge gave her reasons at [1] to [7] of the CALL-1 Form dated 9 March 2018 as follows:

“1. The applicant is a Bangladeshi national who claimed to have entered Hong Kong illegally on 19 August 2013 only to be arrested on same day. He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 10 September 2015 and 31 March 2017. He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected on 28 January 2017. He filed a notice of application for leave to apply for judicial review on 4 July 2017.

2. This notice of application was filed late; it was not within three months of the date of the adjudicator’s decision (Order 53 Rule 4). It was just over two months late. His notice of application does not set out any reasons for the delay as it should. In fact, it does not acknowledge the application is late. It does not seek an extension of time to file this application as it should. His affirmation in support of his application makes no mention of the delay nor gives any reason for the delay.

3. I have considered the legal principles for granting an extension of time for judicial review, the following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and the public administration and whether the application raised any questions of general public importance.

4. The delay is not insignificant, there is no explanation for the delay and there is no good reason for extending time. In fact, there are no grounds put forward to support this application. An oral hearing was set down because there were no grounds to give the applicant an opportunity to make submissions in open court and he had nothing to say. The application, even on a review of the papers, does not raise any questions of general public importance. Delay alone is enough to dispose of this application.

5. In any event, I did consider the adjudicator’s decision and the reasons he rejected the applicant’s appeal/petition. He found the applicant’s evidence to be full of discrepancies and contradictions which seriously damaged his credibility. He gave the applicant an opportunity to explain the discrepancies during the appeal hearing but he found his explanations were implausible. The adjudicator set them out in full in his decision and he cannot be faulted for his finding the applicant was not a genuine claimant.

6. In his decision, the adjudicator correctly set out the law and key legal principles relevant to the four applicable grounds. He set out the applicant’s claim and evidence. He analysed the applicant’s evidence and gave reasons for coming to the conclusion why he did not find the applicant a witness of truth and could not attach any weight to his claim. Even though there were no grounds put forward by the applicant, in reading his decision, I found no error of law by the adjudicator. I saw 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.

7. There would have been no prospect of success in this application.  I refuse leave for judicial review.”

14.  The 14-day period for the applicant to appeal against the Judge’s decision ended on 23 March 2018[5]. On 21 May 2018, the applicant took out the present summons seeking leave to appeal out of time.

15.  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, 22.01.2016). 

16.  In this case, the applicant was late by almost two months, which is not insubstantial.  The applicant explained in his affirmation filed in this application that the Judge’s order “was not received in time due to postal delay since the [applicant] do not stay in a conventional house” and that the applicant “[has] been detained in Castle Peak Bay Immigration Centre since March 2018 which made it even more difficult for him to appeal”.  We are prepared to accept the explanation.

17.  We turn to assess 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. 

18.  Both in his summons and supporting affirmation, the applicant stated: “The [applicant] will face hardship if [he] return to his home country that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay.  They have also relied on the [same] cases which are outdated considering the dramatic changes.  The lack of credible source of information has resulted in them making groundless speculations.” 

19.  Before dealing with the ground made by the applicant in his summons and affirmation, we will address the Judge’s reason that the applicant’s application for leave to apply for judicial review was made out of time (see [2] to [4] of CALL-1 Form).  With respect, the Judge was mistaken.  The Board’s decision was dated 28 June 2017, and it covered both the Director’s first decision dated 10 September 2015 and his second decision dated 31 March 2017.  The applicant filed his Form 86 on 4 July 2017.  This was within three months from the date of the Board’s decision, which was the only decision challenged in the intended judicial review.  To the extent that the Judge considered that leave should be refused on the basis that there was delay in making the application, it is incorrect.

20.  This, however, is not the end of the matter because the Judge had gone on to consider the Board’s decision and reasons for dismissing the applicant’s appeal and concluded there was no basis to challenge its decision.   The ground that the applicant advanced in his summons and affirmation (see [18] above) bears no relevance to the reasons given by the Board for its decision to dismiss the appeal.  As summarised above (see [11] above), the Board’s decision was premised on its rejection of the applicant’s case as being inherently incredible and unreliable (see [37] to [85] of the Board’s decision).  The Board did not rely on any Country of Origin Information.  Nor did it refer to any cases.

21.  We note the applicant’s Form 86 and supporting affirmation did not set out any grounds for his intended judicial review.  We have nevertheless taken a review of the Board’s decision. The Board had given detailed analysis and explanation for his conclusions on the applicant’s credibility and the genuineness of his claim.  Like the Judge, we do not discern any error of law or procedure in the decision, or any unfairness in the procedure before the Board.  We agree that the applicant’s intended judicial review is not reasonably arguable and has no realistic prospect of success.

22.  As the intended appeal against the Judge’s decision has no prospect of success, 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.

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