RE AKHAND SHIMUL

CAMP 71/2022, [2023] HKCA 851

On Appeal From [2021] HKCFI 2514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 71 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 179 OF 2019)

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J U D G M E N T

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

1.  On 26 August 2021, DHCJ P. Li (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“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 11 October 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 8 February 2022. 

3.  On 25 February 2022, the applicant filed a summons in CAMP 71/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal against the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 15 March 2022, the applicant should lodge his written submissions in support of the Summons 14 days after the resumption of court business from the General Adjournment Period due to the Covid Pandemic, i.e. on or before 25 April 2022.  However, he failed to do so.  The Registrar 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.  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

6.  The applicant is a national of Bangladesh. He entered Hong Kong illegally on 9 December 2012 and was arrested by police on 5 April 2014.  On 7 April 2014, he raised his non-refoulement claim alleging that if refouled, he would be harmed or killed by his paternal uncle Faruk (“F”) and people from the Awami League (“AL”) as he belonged to a rival political party, the Bangladesh Nationalist Party (“BNP”) and because there is a dispute about family land between F and the applicant.  The factual background of this case was succinctly summarised by the Judge at [2] – [8] of the JR Decision ([2021] HKCFI 2514).

7.  By a Notice of Decision dated 4 January 2016 and a Notice of Further Decision dated 26 June 2017, the Director of Immigration (“the Director”) had 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]. 

8.  The applicant appealed the Director’s decisions to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  An oral hearing was held on 10 December 2018, during which the applicant gave evidence before the Board.  His appeal was dismissed in its decision dated 11 January 2019.  For the reasons set out at [26] – [93], the Board found that the applicant’s evidence regarding his claimed level of support of, and nature of involvement with, the BNP to be vague, general, inconsistent and unconvincing.  As his own evidence was inconsistent as to whether he was actually a member or was only a supporter of BNP, the Board did not accept that evidence, or that he was involved in any political activities, or was expected to become a future BNP leader.  Besides, there were also numerous significant inconsistencies in his evidence regarding the dispute over the family land, such that the Board did not accept that he was involved in any dispute with his family over land, nor he had been assaulted by F and AL people.  As such, the Board found that the applicant would not face any real risk of harm or torture upon his return to his home country.  For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.

Application for leave to start judicial review

9.  On 18 January 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision and he advanced the following grounds for his intended challenge:

(1)  The appeal bundle was served a few days before the Board’s hearing.  He could not understand the documents which were in English and he could not afford an interpreter. 

(2)  The country of origin information (“COI”) consisted mainly of hearsay and was outdated.

(3)  The BOR 2 claim was not assessed by the Director.

(4)  There were other sources which the Board should consider.

(5)  He had no legal assistance at the hearing before the Board.

The JR Decision

10.  The applicant attended an oral hearing on 26 July 2021.  After due consideration of the Board’s decision and the grounds of his intended challenge against the Board’s decision, the Judge refused leave for judicial review for reasons set out in [16] - [25] of the JR Decision:

“16.    In relation to (1), the most important document in the bundle should be the decision of the Director.  It was sent to the Duty Lawyer Scheme on 4/1/2016.  I am sure the DLS had translated the decision to the applicant.  As to the NCF and the screening interview before the Director, the applicant was assisted by the DLS in compiling the NCF.  There was interpreter service during the screening interview.  I do not accept that the short notice would give rise to unfairness.  There was an interpreter during the TCAB hearing.  The applicant should be able to follow the proceedings.

17. The Form 86 and the affirmation were in typewritten English.  This indicated that he was able to find language assistance.  There was no duty on the Director or the TCAB to provide language assistance at all stages.

18. In relation to (2), the COI concerning the situation in Bangladesh mainly came from the United States Department of State, Transparency International and the UK Border Agency.  They are mainly from the year 2015.  They are State agencies and reliable organisation collecting information through diplomatic channels.  The information provided was highly relevant in assessing the situation in Bangladesh.

19. The applicant was well aware of the material relied on by the Director who listed out all the relevant websites in the decision of 4/1/2016.  The adjudicator had put the relevant links in the footnotes of her decision.  Had there been any dispute, the applicant should have sufficient time to raise it during the hearing with the TCAB on 10/12/2018 or this court on 26/7/2021.

20. In relation to (3), the BOR 2 claim was assessed and rejected by the Director on 26/6/2017.  The decision was sent to the address recorded in his NCF and the Form 8 dated 27/4/2014.  That should be the most updated address then.  The adjudicator was fully aware of it.

21. In relation to (4), in his Form 86 dated 18/1/2018, the applicant mentioned 3 sources in 2010-2011 which he claimed would show the human rights circumstances in Bangladesh.  In my view, the relevant time is the time of the assessment before the TCAB.  Secondly, a general situation of violence is insufficient, there must be personal risk of torture, BOR 2, BOR 3 or persecution.  It is incumbent on him to specify how the sources are relevant. In my view, these 3 cites cannot take the applicant’s case any further.

22. In relation to (5), a claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings.^[5]  The applicant had legal assistance in presenting his case to the Director.  He had ample chances to give evidence and answer questions before the TCAB.  In fact, he had no complaint against the procedures in the TCAB.  I do not find any unfairness even though he was not represented before the TCAB.

23. 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.

24. I agree with the findings of the adjudicator.  The applicant is not truthful.  His evidence was vague and sketchy.  It is unconvincing given that he claimed to be working with the “BNP” for many years.  The adjudicator is correct to reject the factual basis of his claim.  Having done so, there was no need to go into the detail components of each ground separately.

25. In my judgment, there is no error of law or procedure.  The decision of the TCAB is reasonable.”

Application for extension of time to appeal the JR Decision

11.  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 11 October 2021 for an extension of time to appeal.  That was dismissed by the Judge on 8 February 2022.  Hence, the Summons to this court. 

Discussion

12.  In considering whether to extend time for appeal, 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). 

13.  As for (1), the applicant was late by more than 1 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.

14.  As for (2), the reasons for the delay, the applicant explained that he did not know his leave application was rejected and he was only informed by the Immigration Department about the JR Decision.  The Court record showed that the JR Decision was sent to the applicant’s last reported address (which is the same as shown in the applicant’s summons for extension of time) on the date it was handed down and it was not returned as undeliverable mail.  In the absence of any explanation why he did not receive the JR Decision in time, we agree with the Judge that there was no good reason for his delay. 

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any valid grounds of appeal to challenge the Board’s decision nor did he pinpoint any error in JR Decision.  

16.  The applicant advanced the following in the Summons filed to this Court:

“Justice has been erred in concluding there was no failure to adhere to a high standard of fairness at common law. There are minimum standard of procedural fairness required. In decision making process, the decision maker is under a duty to act fairly and justly. The learned judge failed to make sufficient enquiry before finalizing the decision. The learned judge concluded that the applicant’s grounds for leave to apply for judicial review or both the decisions of the Immigration Department and Adjudicator were very board and vague and did not take the risk of the applicant.”

17.  The applicant’s complaint as set out in the Summons is vague and general without particulars or elaboration, and it is not a valid ground of appeal: see Re Mizan Sikder [2019] HKCA 20; and Re Aziz Nasir [2019] HKCA 578. 

18.  As clearly set out at [15] of the JR Decision, the applicant had confirmed with the court the that he had nothing to update the court and he had no complaint against the Director and the Board.  The Judge had nonetheless set out the grounds of complaint advanced by the applicant in Form 86 and explained his reasons for rejecting those grounds at [16] to [25] of the JR Decision.

19.  Further, it is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility as his evidence on his involvement with the BNP, his political conflict with AL and the family land dispute with F was evasive, inconsistent, lacking in details and unconvincing, and he had failed to establish his case on all applicable grounds. 

20.  These were facts which the Board was entitled to find, and we are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny. We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave. 

21.  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 25 February 2022.