RE MD RUSSEL MIAH

CAMP 342/2022, [2023] HKCA 1054

On Appeal From [2022] HKCFI 1436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 342 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1097 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 19 May 2022, DHCJ K.W. Lung (“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 21 July 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 30 August 2022.

3.  On 9 September 2022, the applicant filed his summons in CAMP 342/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the Judge’s decision dated 30 August 2022. This summons is treated as a renewed application for leave to appeal out of time against the JR decision, see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8].

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 9 September 2022, the applicant should lodge his written submissions in support of the Summons on or before 23 September 2022.  However, he failed to do so.  He only lodged his written submissions on 29 September 2022 without any explanation for his delay.

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 27 January 2006 and was permitted to stay as a visitor until 12 March 2006.  He overstayed and was arrested by police on 8 June 2009. On 10 June 2009, he lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment alleging that if refouled he would be harmed or killed by Abdul Karim Miah (“Abdul”) and his family because he refused to marry Abdul’s daughter in satisfaction of his father’s loan which his father had borrowed from Abdul.  His torture claim was rejected on 21 December 2012.  By way of letters dated 17 and 20 March 2013, he lodged his non-refoulement claim on the same basis.  The factual background of this case was succinctly summarised by the Judge at [6] of the JR Decision ([2022] HKCFI 1436).

7.  By a Notice of Decision dated 13 August 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2] and the persecution risk[3].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 15 November 2018.  By its decision dated 25 March 2019, the Board dismissed the appeal.  For the reasons set out at [34] to [53], the Board found that there was no basis for the applicant’s fear that he would be harmed by Abdul if he returns to Bangladesh and that his evidence of his father’s loan and the arranged marriage was inherently incredible.  According to the applicant, after expressing his disagreement to the arranged marriage with Abdul’s daughter, Abdul started to put pressure on the applicant’s father to repay the loan, but Abdul did not at any time ask the applicant to repay the loan for his father.   Further, there was never any real action taken by Abdul, only verbal threats which showed that Abdul had no intention to really harm the applicant and/or his father.  Objective country of origin information (“COI”) showed that there is reasonable state protection and in any event, internal relocation is a viable option to avoid Abdul.  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 24 April 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  He did not advance any ground for seeking relief in his Form or in his supporting affirmation.

The JR Decision

10.  The applicant did not request for an oral hearing and the Judge disposed of his application on paper.  After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [13] - [18] of the JR Decision:

“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16. There is no valid reason to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

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 21 July 2022 for an extension of time to appeal. That was dismissed by the Judge on 30 August 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 7 weeks 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 in his supporting affirmation that he did not know the time limit for filing the appeal.  Ignorance of the law is not a good reason for 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 the JR Decision.  In his written submissions, he only regurgitated general principles of law without showing how there was any breach of them in his case.   

16.  It is clear from the Board’s decision that there was no basis for the applicant to fear that Abdul would harm or kill him upon his return to Bangladesh.  In any event, relevant COI showed that there is reasonable state protection and internal relocation is a viable option to avoid Abdul.  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.

17.  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.

18.  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 9 September 2022.