RE NOOR MOHAMMED

CAMP 450/2022, [2023] HKCA 1156

On Appeal From [2020] HKCFI 1228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 450 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 229 OF 2018)

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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 15 June 2020, Campbell-Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim and dismissed his leave application (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap.4A) (“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 9 November 2021 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 12 January 2022.

3.  On 28 October 2022, the applicant filed a summons in CAMP 450/2022 (“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 28 October 2022, the applicant should lodge his written submissions in support of the Summons on or before 11 November 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 came to Hong Kong on 23 July 2005 and was allowed to remain as a visitor until 6 August 2005. He overstayed and was arrested by the police on 28 September 2006. On 9 August 2007, he raised a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. First, he claimed that he feared arrest by the Bangladesh police based on a false accusation of illegal possession of two bullets, and he claimed a police officer had told him that the real reason for his arrest was his refusal to join the Awami League (“AL”). Moreover, he feared that he would be harmed by extremists from the PH Gang due to his refusal to join Bangladesh Nationalist Party (“BNP”) the ruling party. He claimed the PH Gang had extorted money from him and had shot and severely beaten him. The factual background of this case was succinctly summarised by the Judge at [4] of the JR Decision ([2020] HKCFI 1228).

7.  By a Notice of Decision dated 26 February 2015 and a Notice of Further Decision dated 2 August 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].

8.  The applicant appealed the Director’s decisions to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 5 December 2017. By its decision dated 8 February 2018, the Board dismissed the appeal. For the reasons set out at [5.1] to [5.11], the Board found that the applicant was not a truthful and reliable witness. First, he said he was only a supporter of BJP and was not even a member. The Board considered it unlikely that the AL and the BNP would expend huge manpower and resources all over Bangla Desh to hunt him down. He alleged he could not remember if he told his lawyer that the charge of illegal possession of the bullets was false. Further his evidence in relation to the alleged assault by PH gangsters and his sustaining a gunshot wound was unconvincing and implausible. The hospital certificate he produced showed that no surgery was done on him, and he said he only received one or two sutures in one place, which was unlikely if he had been shot. He also claimed that he stayed in hospital for one month as it was safer there than at home, although he did not inform the doctor of that reason for his stay. Further, the applicant did not raise any claim for over a year after he came to Hong Kong and only did so when he was arrested by the police, which cast serious doubt if he is a genuine asylum seeker. In any event, internal relocation is a viable option. For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 13 February 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s decision. As rightly pointed out by the Judge[5], the Board’s decision superseded the Director’s decisions. The Judge thus focused on whether there was any valid public law ground to challenge the Board’s decision.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper. After due consideration of all the papers before her, the Judge refused to grant leave to apply for judicial review with reasons set out in [10] - [11] of the JR Decision:

“Grounds of review

10. There were no grounds of review as against the Adjudicator. The applicant seeks a re‑hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any grounds of review as against the Adjudicator. I have considered the papers carefully. I have not found any error of law or procedure which is relevant to the claim and the facts before him. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite disbelieving the applicant, the Adjudicator went on to assess his claim at its highest. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and 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 9 November 2021 for an extension of time to appeal. That was dismissed by the Judge on 12 January 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 16 months 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 and inordinate.

14.  As for (2), the reasons for the delay, the applicant said in his supporting affirmation that he was not aware of the time limit for appeal. It is trite law that ignorance of legal procedure is not a good reason for delay. In his supporting affirmation for the Summons filed with this Court, he said that he never received the JR Decision. The court file showed that the JR Decision was sent to his last reported address but it was returned as undeliverable mail. We noted that the address was different from the one provided in his summons filed in the CFI dated 9 November 2021. Be that as it may, the applicant had failed to inform and provide the court with his new address. As he must shoulder the consequence of failing to do so, we do not see any good reason for his substantial delay.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.

16.  In the Summons and supporting affirmation filed with this Court, the applicant complained that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation of his country.

17.  The applicant’s complaint did not deal with the fact that he did not request an oral hearing for his application for leave to apply for judicial review, nor with his failure to attend the scheduled hearing for his application to appeal the JR Decision out of time.

18.  It is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility as his evidence was improbable and unconvincing. The credibility of the applicant’s case was further undermined as he only raised his claim after his arrest by the police for overstaying in Hong Kong for over a year. These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds. We see none in this case.

19.  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.

20.  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 28 October 2022.