RE MIZAN MIA

CAMP 151 /2022

[2022] HKCA 1224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 151 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 464 OF 2017)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  On 4 December 2017, Deputy High Court Judge Woodcock refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  On 14 April 2022, the applicant’s application for extension of time to appeal against the said decision was dismissed by Deputy High Court Judge To, as the applicant has no valid explanation for the substantial delay and no arguable grounds of appeal^[1].

3.  On 13 May 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal.

4.  The applicant is a national of Bangladesh.  He is 37 years old.  He came to Hong Kong as a visitor on 27 September 2007.  He subsequently overstayed and was arrested by the police on 16 November 2009.  He lodged his torture claim on 9 December 2009 which was rejected by the Director of Immigration (“the Director”) on 19 March 2013.  His appeal was refused on 28 June 2013. 

5.  The applicant lodged a non-refoulement claim on 29 May 2014 on the basis that he would be harmed or killed by Shamsul and his friends including some people from the Awami League if he returns to Bangladesh due to his involvement in assaulting Shamsul and he would be arrested by the police for the assault. 

6.  His non-refoulement claim was assessed under the Unified Screening Mechanism on all applicable grounds other than torture risk^[2].  By a Notice of Decision dated 8 June 2016 and a Notice of Further Decision dated 6 March 2017, the Director rejected the applicant’s claim on BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

7.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 26 May 2017.  The Board considered that the applicant’s evidence with regard to the threats of harm to him at the hands of Shamsul amounted to no more than unsupported assertions based upon hearsay.  The Board further assessed that the alleged injuries did not attain the requisite minimum level of severity.  As for the applicant’s fear that the Bangladeshi police are looking for him, the Board considered that non-refoulement protection cannot be invoked to avoid the due process of the law.  In addition, the Board also held that internal relocation within Bangladesh to a place other than his home village is a viable alternative for the applicant.  The Board therefore decided that the applicant failed to establish his non-refoulement claim on any of the applicable grounds and dismissed his appeal on 21 July 2017.

The judge’s decision

8.  On 28 July 2017, the applicant filed a Form 86 and supporting affirmation to apply for leave to bring judicial review against the decision of the Board.  He put forward 8 grounds of judicial review which may be summarized as follows:

(1)     The Board failed to carry out sufficient research and inquiry into the Country of Origin Information (“COI”).

(2)     The Board failed to take into account highly relevant COI, cherry-picked and took into account COI of little or no relevance and relied on outdated COI publications.

(3)     The Board failed to evaluate whether there exists a consistent pattern of gross, flagrant or mass violations of human rights in Bangladesh.

(4)     The Board failed to assess whether state protection exists in Bangladesh under the extended meaning.

(5)     The Board put weight on irrelevant or incorrect considerations and failed to take into account facts and inferences that were favourable to the applicant.

(6)     The Board failed to call for psychological and psychiatric evaluations and reports.

(7)     The Board applied the incorrect standard of proof.

(8)     The failure by the assigned duty lawyer at first instance resulted in a lack of and/or insufficient legal representation.

9.  DHCJ Woodcock dealt with the leave application on paper as the applicant was absent at the hearing scheduled on 12 October 2017.  The judge considered the applicant’s grounds lacking in particulars and merits.  She noted that the Board made no reference to COI or state protection and there was no basis for the Board to call for psychological or psychiatric evaluation.  As for the complaint in the affirmation concerning the delay in providing the appeal bundle, this was not raised before the Board and his claim was rejected for lack of credibility, not because of legal submissions advanced by the Director which were included in the appeal bundle.  The judge also held the complaint that BOR 2 risk was not screened by the Director has no merits, as the Director had rejected the claim on BOR 2 risk.  She concluded that the applicant’s claim is not reasonably arguable and he failed to show any realistic prospect of success in his intended judicial review.  Thus, the leave application was dismissed on 4 December 2017.

Grounds of appeal

10.  The applicant stated in his affirmation that the High Court did not extend time for him to appeal and this judgment is unlawful.

11.  In his written submissions, he reiterated the problems he faced in Bangladesh and he does not want to return for the safety of his life.

Analysis and disposition

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The judge’s order was made on 4 December 2017.  The applicant was late for more than 4 years when he took out the summons in the court below on 7 January 2022. 

14.  He explained that he was late because he did not receive the judgment.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).  The applicant’s explanation is not acceptable as the delay is very substantial and he did not inform the court of his change of address.  Therefore, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

15.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  An appeal against the refusal of leave by a judge is not the occasion for regurgitating arguments that have been advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters placed before the court or was otherwise plainly wrong.

17.  The applicant’s ground in the present application as stated in his affirmation is just a bare assertion without any particulars or evidence in support.  He did not elaborate why he considered the judgment unlawful.  He has not demonstrated that DHCJ Woodcock had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in rejecting his application.

18.  For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to exercise our discretion to extend time to appeal against the decision of DHCJ Woodcock on 4 December 2017 and dismiss the renewed application for extension of time on 13 May 2022.