RE SUMON NUMAN

CAMP 252/2021

[2022] HKCA 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 252 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2017 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 5 August 2020, DHCJ Bruno Chan (“the Judge”)  refused to grant an extension of time to the applicant for leave to apply for judicial review of the decision of Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”)  dated 28 September 2017 concerning his non-refoulement claim and dismissed his leave application (“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 5 October 2020 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 15 April 2021.

3.  On 13 July 2021, the applicant filed his summons in CAMP 252/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 13 July 2021, the applicant should lodge his written submissions on or before 27 July 2021.   The Registrar had further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

5.  However, the applicant only lodged his written submissions on 10 August 2021.  He did not provide any reason for his delay.  As such, the applicant’s written submissions will not be considered by this Court.

6.  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

7.  The applicant is a national of Bangladesh who entered Hong Kong illegally on 28 December 2006 and was arrested by police on 28 August 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim alleging that if refouled, he would be harmed or killed by some local supporters of a rival political party Bangladesh Nationalist Party (“BNP”)  for refusing to join their party.  The factual background of this case was succinctly summarised by the Judge at [2] - [6] of the JR Decision ([2020] HKCFI 1351).

8.  By a Notice of Decision dated 22 August 2014 and Notice of Further Decision dated 20 March 2017, the Director of Immigration (“the Director”)  decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

9.  The applicant appealed the Director’s decisions to the Board.  The applicant failed to attend the oral hearing which was fixed for 16 May 2017.  The Board thus proceeded to determine the matter in his absence and by its decision dated 28 September 2017, the Board dismissed the appeal and confirmed the Director’s decisions.  For the reasons set out at [36] to [47], the Board found that the applicant’s evidence did not support any claim.  First, according to the applicant, although he at one stage referred to himself as a “key member” of the Awami League (“AL”), on his own case he did not hold any official position at all and he only attended their activities with others.  The Board found that it was incredible for the BNP supporters especially a prominent member to specifically target the applicant to join their party (see in particular, para 38 of the Board’s decision); and in any event BNP, was no longer in power as AL became the ruling party in Bangladesh at the 2014 election.  Second, regarding the incident of arson at the applicant's home in December 2011, the Board had watched the video clips and the newspaper reports submitted by the applicant, and found that the said materials referred to a fight between two groups in Bhadikara village following the Lakhai Union election in 2011.  Although the incident led to casualties and property loss and damage, there was no evidence to suggest that the applicant's house or family was specifically singled out as a target of attack in the incident.  In any event, the Board did not consider the BNP would spend their resources to track down the applicant after his absence from Bangladesh since 2006.  Thus, his alleged fear of returning to his home country was merely speculative and unsupported by any persuasive evidence.   For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.  On 24 September 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  By then he was out of time by some 9 months with his intended application, as Order 53 rule 4(1)  of the Rules of the High Court (Cap 4A)  requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose.

11.  The applicant put forward the following grounds for his intended challenge:

(1)  misdirection in Law in that the adjudicator misdirected himself on the law by taking into account that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and in cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirection as to the extended meaning of state protection;

(6)  irrationality in the Board’s decision in taking into account and putting weight on irrelevant consideration or based on incorrect or inaccurate facts;

(7)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(8)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

The JR Decision

12.  The applicant attended an oral hearing on 14 January 2020.  After due consideration of the decisions of the Director and the Board, the Judge refused to grant an extension of time to the applicant to apply for judicial review of the Board’s decision and dismissed the leave application with reasons set out in [15] - [22] of the JR Decision:

“15. In the Applicant’s case, a delay of almost 9 months must be considered as substantial or excessive, for which the Applicant explained at the hearing that he did not receive the Board’s decision until around September 2018 for which he suspected might have been put in the wrong mailbox of his residence but without providing any further elaboration or evidence in support of his claim.

16. The record shows that the Board’s decision was sent to the Applicant’s last reported address on the same day of 28 September 2017, and even if it may have been misplaced in the wrong mailbox as suspected by the Applicant, I find it hard to believe that it would have taken 9 months to re-surface and to reach him eventually as alleged. As such and in the absence of any reliable evidence I am not satisfied that the Applicant has provided any good or valid reason for his such serious delay.

17. As for the merits of his intended application, I find his proposed grounds all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was extended state protection to his claim when he never made any report to the police or sought their assistance, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

18. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

20. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his SCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his SCF was completed on his own instructions with legal assistance. In the circumstances I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

21. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

22.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Application for extension of time to appeal the JR Decision

13.  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 5 October 2020 for an extension of time to appeal.  That was dismissed by the Judge on 15 April 2021.  Hence, the Summons to this court.

Discussion

14.  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).  As for (1), even taking into account the Summer Vacation as specified in Order 3 rule 3, the Rules of the High Court (Cap 4A), the applicant was late by about a month 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 claimed before the Judge that he did not receive the JR Decision as he did not have direct access to the mailbox as a tenant of his flat.  He only received the JR Decision at the end of September 2020 and his appeal was already out of time by then.  The Judge considered that his explanation was a bare assertion without any supporting evidence as the court file showed that the JR Decision was sent to the applicant's last reported address and it was not returned by post.  In the circumstances, the Judge was not satisfied that there was any good reason for the delay.  We agree with the Judge’s decision.

16.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds of appeal against the JR Decision except to say that he is a genuine non-refoulement claimant and he still faces torture in his home country.  The Judge rightly concluded that there is no realistic prospect of success in the intended appeal and refused to extend time for an unmeritorious application.

17.  In his summons and supporting affirmation filed with this Court, the applicant did not provide any ground for his intended appeal either.

18.  It is clear from the Board’s decision that the applicant’s claim was rejected on all applicable grounds as he failed to substantiate his claim that he would face a real risk of harm upon his return to Bangladesh.  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.  We do not see any in this case.  We are also 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.

19.  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 13 July 2021.