MGU v. WILLIAM LAM, ESQ

HCAL 117/2017

[2019] HKCFI 173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 117 OF 2017

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D E C I S I O N

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1.  On 10 October 2017, I refused to grant leave to the applicant (“MGU”) to apply for judicial review against the decision of the Torture Claims Appeal Board (“TCAB”) dated 24 March 2017 (“10/10/17 Decision”). MGU now applies for extension of time to appeal against the 10/10/17 Decision. The application by summons was filed on 13 November 2018 (“Summons”) with a supporting affirmation (“Affirmation”).

2.  The factual background had been set out in the 10/10/17 Decision. I adopt such factual background, summary of the decision by the Director of Immigration dated 7 January 2016 and summary of the decision by the TCAB dated 24 March 2017 as set out in the 10/10/17 Decision, but without repeating them here.

3.  I also refer to my reasons for decision set out in the 10/10/17 Decision. I found no substance in MGU’s application for leave to apply for judicial review. I was unable to find any ground that showed there was an error of law by the TCAB, and no evidence of procedural unfairness or failure to adhere to a high standard of fairness. The TCAB’s decision was not Wednesbury unreasonable, and MGU’s claim was not reasonably arguable. There was no realistic prospect of success, and his application for leave to judicial review was refused.

4.  I also adopt herein the abbreviations in the 10/10/17 Decision.

5.  The Summons stated in gist as follows:

“The court has ordered that the leave application for leave to judicial review be refused with ordered no costs, as I did not get the ordered on time and as I am out of time. So I requesting for the time extension for the leave to be granted. Rest of the grounds are in the affirmation set.”

6.  As for the contents of the Affirmation, it was said the applicant was referred to as MGU (instead of his full name) in the 10/10/17 Decision and corresponding sealed court order, and he “completely had no idea about that as well. It’s very strange for [MGU] to understand about the changes of [his] name without even any knowledge of main”.

7.  In the Affirmation, MGU also claimed he did not get the 10/10/17 Decision on time. He claimed he put his residential address properly in the Form 86 and in his supporting affirmation for his application for leave to apply for judicial review (“Address”), so he did not understand why he could not get the judgment and court order on time. But he admitted that “[he] did received some court letters from the court on time before”.

8.  MGU claimed he had since taken legal advice and understood he had good grounds of appeal that “were not necessarily considered at the stage of applying for leave for Judicial Review. Obviously, this was [his] own oversight brought on by the fact that [he] was acting in person at this stage of proceedings. Additionally, [he] was informed that the Director and the Adjudicator did not saw the grounds to reverse their decision …… [MGU believes] that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal put of [him]. Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse [his] Appeal/petition”.

9.  MGU in the Affirmation further claimed as follows:

“7. I am a genuine Non-refoulement Claimant who faced all these dangerous problems and harassment and torture in Bangladesh. I am unable to find any place to stay safely in his country, so I fled abroad to save my life. I thinks I am the luckiest person who succeeded to escape from such danger and is still alive today.

8. I believes this Director of Immigration and the Adjudicator of Appeal Board reached the wrong decision in assessing his USM claim. How come the Director of Immigration and the Adjudicator rejected my claim without proper inquiry and without carefully understanding my situation? To understand my claim fairly, my immigration officer and the Adjudicator are invited to tour my country and ask those familiar with his case what real danger I would face if I am returned there.

9. The Director and the Adjudicator thought that because I had no proof of my statement. It is my humble request to the Court to exercise its discretion to allow me to appeal out of time.”

10.  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 the delay, (b) reasons for the delay, (c) prospect of the intended appeal, and (d) prejudice to the putative respondent if extension of time was granted.

11.  In relation to the length of the delay and reasons for the delay, I bear in mind that the original deadline for MGU to lodge his appeal against the 10/10/17 Decision was on or before 24 October 2017, being 14 days from 10 October 2017 (see Order 53 rule 3(4) of the Rules of the High Court). MGU made his application on 13 November 2018, which was more than a year’s delay. The delay was substantial.

12.  MGU alleged the delay was because (a) he was named MGU rather than his full name in the 10/10/17 Decision and corresponding sealed court order, and (b) he did not receive the 10/10/17 Decision on time. In my view, such contentions were bare allegations unsupported by evidence, and had no merit.

13.  In respect of (a) above, this court by written directions dated 19 July 2017 directed inter alia that the applicant shall be named MGU instead of his name in these proceedings. Such written directions were sent by post to the MGU at the Address. Thereafter, the applicant was named as MGU in the present proceedings. Indeed, the applicant was named as MGU in the notice of hearing for the hearing of his application for leave to apply for judicial review then scheduled to be heard on 29 September 2017. The applicant was also named as MGU in the daily cause list for hearing before this court on 29 September 2017. Nevertheless, MGU appeared in person at the hearing on 29 September 2017 before this court, so he must have been aware that he was named as MGU for the purpose of the present proceedings.

14.  In respect of (b) above, the 10/10/17 Decision and corresponding sealed court order were sent by post to the Address. In my view, the argument that MGU did not get the 10/10/17 Decision on time would not constitute a satisfactory explanation for the delay. MGU was silent in the Affirmation as to exactly when he received the 10/10/17 Decision if he did not receive it “on time”. There was no justification for more than a year’s delay. Further, there was no logical explanation as to how it was the case that (as he admitted) he received some letters from the court “on time before” and not in respect of the 10/10/17 Decision.

15.  Further, at the hearing on 18 January 2019, MGU in his oral submissions made the following points:

(a)  In May 2018, MGU’s brother was killed by members of AL (Awami League).

(b)  On 5 November 2018, MGU had made written request to the authorities for return to Bangladesh.

(c)  Subsequently, MGU received news that it was not safe for him to return to Bangladesh, and that he should only return after elections in Bangladesh on 31 December 2018.

(d)  But AL continued to remain in power after the elections in December 2018. As there was no change in the political situation in Bangladesh, MGU who supported the BNP (Bangaldeshi Nationalist Party) did not want to return to Bangladesh, which was why he sought extension of time to appeal against the 10/10/17 Decision.

(e)  MGU claimed he did not feel safe to return to Bangladesh because he had a big issue with Karimullah (referred to as K in in the 10/10/17 Decision) who was a member of AL.

16.  None of the matters in (a)-(e) above was verified by affirmation. MGU submitted that these matters came about after he filed his Affirmation. But plainly the matters in (a)-(b) above occurred before MGU made his affirmation on 13 November 2018, and the fact he had an alleged issue with K had been considered in the 10/10/17 Decision, so it was not a new matter. MGU did not offer any reason as to why he did not file supplemental affirmation to verify the matters in (a)-(e) above.

17.  More importantly, MGU admitted that on 5 November 2018 he volunteered to return to Bangladesh. According to him, at that time, his brother was killed by members of the AL just half year ago, and AL was in power in Bangladesh. Nevertheless, MGU made written request in early November 2018 to return to his home country. This tellingly detracts from his alleged concerns about lack of change of political situation after the December 2018 elections. In my view, even if I were to take into account the matters MGU raised in his oral submissions, they did not amount to any cogent basis for granting extension of time to appeal against the 10/10/17 Decision.

18.  As regards the merits of MGU’s intended appeal, he had not advanced any particularised grounds on the merits of the appeal in the Summons and/or Affirmation. He merely made a bare allegation that there were good grounds of appeal, and exhibited to the Affirmation the 10/10/17 Decision and the corresponding sealed court order. He also alleged he had received legal advice there were further grounds for leave to apply for judicial review which he had not addressed at the hearing on 29 September 2017, but he did not say in the Affirmation what those grounds were.

19.  In my view, MGU in making the assertions in paragraphs 7-9 of the Affirmation (see paragraph 9 above) was repeating his arguments made before this court in respect of his application for leave to apply for judicial review. These arguments had been addressed in the 10/10/17 Decision. For reasons set out in paragraphs 16-17 above, the matters raised in MGU’s oral submissions also did not amount to arguable grounds for appeal. Having carefully considered the Affirmation and MGU’s submissions, I do not find any arguable merit in the intended appeal.

20.  For the above reasons, the application for extension of time to appeal is refused with no order as to costs.