RE MD ATIAR RAHMAN

CAMP 382/2021

[2022] HKCA 1541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 382 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2962 OF 2018)

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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.  By a summons dated 10 September 2021, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge P Li (“the Deputy Judge”) dated 4 December 2020 refusing his application for leave to apply for judicial review ([2020] HKCFI 3032) (“Leave Decision”). By a judgment dated 31 August 2021, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2021] HKCFI 2453) (“the EOT Decision”).

2.  The applicant’s intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 3 December 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 12 January 2018 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under 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 entered Hong Kong illegally from the Mainland on 26 April 2007 and was arrested by the police on 11 May 2007 for illegal remaining.  On 14 May 2007, he was referred to the Immigration Department for investigation.  He made a torture claim on 9 June 2007 which was refused by the Director on 28 July 2011 and his appeal was later dismissed by the Petition Team of the Security Bureau on 24 August 2011.  He then absconded since 2 September 2011 and was arrested by the police on 21 December 2013. He was referred to the Immigration Department for action on 23 December 2013.

5.  By a written representation dated 26 December 2013, the applicant claimed for non-refoulement protection on the basis that he feared he would be subjected to ill-treatment inflicted or even killed by Billal Shagor (“Billal”) and some Awami League (“AL”) members if he returned to Bangladesh because of a fight he and his Bangladesh National Party (“BNP”) friends had in 2006.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [3] ‑ [15] of the Leave Decision.

6.  By a Notice of Decision dated 12 January 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds other than torture risk including BOR2 risk[1], BOR3 risk[2] and prosecution risk[3].

7.  On 26 January 2018, the applicant appealed against the Director’s Decision to the Board.  On 2 August 2018, he attended an oral hearing before the Board with the assistance of a Bengali interpreter.  On 3 December 2018, the Board dismissed his appeal.  In essence, after considering the evidence, the Board afforded the applicant the benefit of the doubt and accepted that he and his father were both ordinary members of the BNP in their home area but did not accept that the applicant’s father was the president of the BNP in their home town or that his father held any senior position within the BNP.  The Board accepted that the applicant and his friends had a fight with some Awami League members in late 2006 and the applicant had injured Billal’s nephew.  Although the Board accepted that Billal and his men went to the applicant’s house to look for him in several occasions, the Board considered that the applicant had embellished, exaggerated and fabricated his claims about Billal’s men locating him in Dhaka.  The Board also did not accept that the applicant met a friend in Hong Kong who told him about Billal’s continuous effort to locate him in the home village.

8.  As to the alleged risks, the Board found that it had been at least 12 years since the applicant left his home village and he had not contacted his family for over 10 years.  The Board considered that state protection would be available to the applicant and that there was no substantial ground to believe that he would face a real risk of ill-treatment upon returning to Bangladesh. The Board did not accept that the applicant had a well-founded fear of persecution in Bangladesh.  The Board also found that it would be safe for the applicant to internally relocate to other cities of Bangladesh.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

9.  On 24 December 2018, the applicant filed his Form 86 for leave to apply for judicial review against the Board’s Decision.  In his Form 86, he alleged that the Board’s Decision was unreasonable as his claim was not carefully considered.  In his supporting affirmation dated 24 December 2018, he also contended that the Board’s Decision was unreasonable as the adjudicator failed to consider all the matters raised in his claim and / or failed to give adequate reasons for his decision.

10.  Having considered the documents before him, on 4 December 2020, the Deputy Judge refused the applicant’s application for leave to apply for judicial review for the following reasons:

“27. The applicant filed the leave application for judicial review. In his affirmation in support, he pointed out that the adjudicator was unreasonable and failed to consider all the matters.

28. 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 duties of the TCAB and the Director. In general, this court would not interfere.

29. The applicant had not made specific complaint of any error in the decisions of the TCAB and the Director.

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

Conclusion

31. The application is not reasonably arguable. There is no reasonable prospect of success.  I refuse leave for judicial review.”

The EOT Decision

11.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days after the order.  No notice of appeal was filed by the applicant within the 14-day period.  On 4 January 2021, the applicant filed a summons for extension of time to appeal (“the EOT Summons”).  By then, the applicant was almost 17 days late with his intended appeal.  In his supporting affirmation dated 4 January 2021, he contended that he did not receive the Court’s order within a reasonable period of time allowing him to appeal within time.

12.  By the EOT Decision, the Deputy Judge considered the applicant’s delay and noted that he failed to specify the exact day he received the decision and the possible reason for the failure in the mail.  He also did not explain the reason for further delay. The Deputy Judge further noted that the Leave Decision was sent to the address (which was the same as the one provided by the applicant in his EOT Summons) on 4 December 2020 and there was no return of mail.  In any event, as the applicant failed to point out any error in the Leave Decision, the Deputy Judge considered that his intended judicial review had no merit and refused his application for extension of time to appeal.

The Present Application

13.  By a summons and supporting affirmation both filed on 10 September 2021[4], the applicant reapplied for extension of time to appeal against the Leave Decision.  The applicant did not provide any viable grounds of appeal and only stated that he did not receive the Court’s seal order or the Leave Decision within 14 days from 4 December 2020 due to the order lost in the post.  He also contended that he could only obtain the Court’s order, the Leave Decision and the judgment after searching the Court files.

14.  Pursuant to the directions given by the Registrar of Civil Appeals dated 10 September 2021, the applicant lodged his written submissions on 24 September 2021.  In those submissions, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which related to the late filing of notice of appeal to the Board but failed to point out its relevance to his case.  It is also noted that his submissions were all general propositions and the applicant failed to show specifically how they were relevant to his case.

Discussion

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: (a) the length of delay; (b) the reasons for delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if an extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  We consider that the delay of 17 days to be not insubstantial and we agree with the Deputy Judge that the applicant failed to provide any specific particulars or evidence in support of his allegation that the mail got lost.  As noted by the Deputy Judge in the EOT Decision, the Court’s sealed order and the Leave Decision was sent to his last known address (which was the same as the one provided by the applicant in the EOT Summons) and the mail was not returned undelivered.

17.  In the circumstances, as the applicant failed to give any cogent explanation for his delay in bringing the intended appeal, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

18.  In assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

19.  At the outset, nowhere in the summons or supporting affirmation of this application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge. As such, no viable grounds of appeal are given by the applicant.  The intended appeal must fail on this basis alone.

20.  Further, those arguments raised in his written submissions are new and not raised in the Court below.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  The applicant’s contentions are also general and bare assertions without any specific particulars or evidence in support.  They do not constitute proper grounds of appeal and we refuse to entertain those arguments.

21.  As the applicant failed to identify any proper grounds of appeal, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 10 September 2021 dismissed.