RE HOSSAIN MD FARUK

CAMP 94/2018

[2018] HKCA 839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 94 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 947 of 2017)

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JUDGMENT

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

1.  By summons filed on 25 June 2018, the applicant applies for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 4 May 2018 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 10 November 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 28 April 2016 and 30 June 2017 rejecting his non-refoulement claim.

2.  Under Order 59 rule 2A and rule 14A(1) of the Rules of the High Court, Cap. 4A, 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, pursuant to Order 59 rule 2A(5)(a).

3.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally and was arrested by the police on 7 February 2014. On 9 February 2014, he raised a non-refoulement claim based on his fear of being harmed or killed by supporters of the Awami League (“AL”) due to his participation in the Bangladesh Jatiotabadi Chatra Dal of the Bangladesh Nationalist Party (“BNP”), and also because of a false case that the AL supporters had brought against him.

4.  The background of the applicant and his case were detailed in the decisions of the Director and the Board, and summarized by the Judge at [2] to [5] of the Form CALL-1 dated 4 May 2018, [2018] HKCFI 927 as follows:   

“2. The applicant was born and raised in Village Bakpur, P.O. Soilodaho, Chitalmari, Bagerhat, Bangladesh where his mother and four sisters still live. After completing his secondary education he joined Bangladesh Jatiotabadi Chatra Dal (“JCD”) in 2008 which was the student wing of the Bangladesh Nationalist Party (“BNP”) in which he was subsequently elected as a general secretary of JCD responsible for holding meetings and recruiting members and supporters for JCD.

3. One day in about 2012 while he together with other members were on their way to a meeting they were ambushed by members of AL with sticks, choppers and iron rods and a big fight broke out until the police arrived and everyone fled. The applicant later learnt that the fight was caused by a false claim of a land dispute made by the AL people against him. After his discharge from hospital for the injuries he received from the fight, the applicant reported the matter to the police but he was told to go away.

4. In July 2013 the applicant was approached by the local AL leader to leave BNP and to join his AL party, but when he refused, the AL leader was unhappy and warned him that there would be problems for him. One day in November 2013 when the applicant heard that the local AL party was planning a rally to harass and attack BNP members and supporters, he fled to a neighbouring village and was later told by his neighbours that some AL people had gone to his home armed with hockey sticks and iron rods looking for him and when they could not find him, they broke the door, terrorized his mother and vandalized his home.

5. On the following day the applicant fled to his best friend’s place in Dhaka and was advised to leave Bangladesh for his own safety.  He departed on 5 December 2013 for China and from there he sneaked into Hong Kong on 26 December 2013 until he was arrested by the police and subsequently lodged his non-refoulement claim with legal assistance from the Duty Lawyer Service.”

5.  By a Notice of Decision dated 28 April 2016 and a Notice of Further Decision dated 30 June 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], the BOR 3 risk[2] and the persecution risk[3], and the further decision dealt with the BOR 2 risk[4] ground.    

6.  The Board heard the applicant’s appeal against the Director’s decision on 18 September 2017.  The applicant elected to give evidence to supplement his claim and had answered questions from the Board.       By a decision dated 10 November 2017, the Board dismissed the applicant’s appeal.  The Board found on the totality of the evidence that the applicant’s perceived fear of harm from the AL supporters was largely based on speculation and his own belief.  The Board also considered that state protection and internal relocation were reasonably available to negate or lower his claimed risk of harm.  The Board concluded that the applicant had failed to make out a case for non-refoulement protection under any of the applicable grounds.   

7.  On 24 November 2017, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.

8.  At the applicant’s request, an oral hearing was held on 6 April 2018 to hear the leave application.  In [11] to [16] of the Form CALL-1, the Judge set out the applicant’s grounds for judicial review and the reasons for his decision to refuse leave to apply for judicial review as follows:   

“11. On 24 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he set out the grounds for his intended challenge which can be summarized as follows:

(1) procedural impropriety in their consideration of COI and his documentary evidence including improper or selective reliance thereof, failing to make proper inquiry or analysis of such information, and failing to give proper weight on his supporting documents in their consideration and assessment of his claim;

(2) failure to apply the relevant legal principles in their consideration of his claim;

(3) failure to consider the legal concept of extended state acquiescence in their assessment of his claim; and

(4) failure to properly consider or at all the physical and mental distress suffered by him in the past incidents in their consideration of whether it would be safe for him to return to Bangladesh.

12. The first two grounds appear to me just broad and vague statements unsupported by any particulars or specifics from the applicant, as clearly both the Director and the Board did properly apply the relevant principles in their consideration of his claim with high standard of fairness, and upon examination of the COI listed and referred to by both of them in their decisions, I do not find anything amiss arising from their reliance of them in their assessments. There is simply no merit in these grounds of the applicant.

13. As for his ground (3) about extended state acquiescence, again in the absence of any particulars or specifics it is not clear what is the basis of this argument of the applicant, and given that his claim was found by both the Director and the Board to have failed essentially on credibility, there is simply no merit in this ground either.

14. Similarly there is no merit in his last ground either, as both the Director and the Board were entitled to reject the applicant’s claim of threats based on his credibility and on the facts before them, and that their assessments of his safe return to Bangladesh are also well supported by reliable and objective COI, and I am simply unable to find any merit in this ground of the applicant.

15. In the premises and having considered the decisions of both the Director and the Board with rigorous consideration and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

9.  The 14-day period[5] for the applicant to appeal the decision of the Judge expired on 18 May 2018.  On 25 June 2018, the applicant filed the present summons together with an affirmation to apply for leave 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: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016).  Among these factors, the prospect of success of the intended appeal is a crucial consideration: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226.

11.  In this case, the applicant was late by one month, which is not insubstantial.  In both the summons and the affirmation, the applicant had given no explanation for the delay in bringing the appeal.  Neither had he set out any proposed grounds of appeal. 

12.  Pursuant to the directions of the Registrar of Civil Appeals, the applicant had lodged a written submission on 6 August 2018. The document is in fact a copy of the applicant’s non-refoulement claim form.

13.  In the absence of any explanation of the delay, and crucially any indication of prospect of success of the intended appeal, there is no basis to exercise the discretion to extend the time for appeal.  Accordingly, we refuse the application and dismiss the summons.

14.  As the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.