RE KHAN ABDUR RASHID alias MONIR KHAN

CAMP 193/2022, [2023] HKCA 817

On Appeal From [2021] HKCFI 2685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 193 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 630 OF 2020)

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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 8 September 2021, DHCJ P. Li (“the Judge”) refused to grant leave to the applicant for leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”) [2021] HKCFI 2685. Under Order 53 r.3(4) Rules of the High Court (“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 25 October 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 22 February 2022 [2022] HKCFI 459. 

3.  On 14 June 2022, the applicant filed a summons in CAMP 193/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal against the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 14 June 2022, the applicant should lodge his written submissions in support of the Summons on or before 28 June 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.  On 22 March 2023, the applicant filed a Request for Dismissal of Appeal requesting the dismissal of “the notice of motion filed on 14 June 2022.”  That was obviously a reference to the Summons filed on 14 June 2022 and we will treat it as a request to withdraw the Summons. The practice of this court is to consider, and if appropriate, dismiss such application instead of merely granting leave to withdraw: see Rini Artini [2020] HKCA 709 at [9].

6.  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

7.  The applicant is a national of Bangladesh. He came to Hong Kong on 24 May 2015.  He overstayed and surrendered to the Immigration Department on 8 June 2015.  On 6 August 2015, he raised his non-refoulement claim alleging that if refouled, he would be harmed or even killed by the people of Awami League (“AL”) as he was a member of Bangladesh Nationalist Party (“BNP”).  The factual background of this case was succinctly summarised by the Judge at [2] – [11] of the JR Decision ([2021] HKCFI 2685).

8.  By a Notice of Decision dated 7 November 2018, the Director of Immigration (“the Director”) had decided against the applicant’s claim.  The Director’s decision covered the BOR 2 Risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

9.  The applicant filed his Notice of Appeal with the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) against the Director’s decision.  The applicant attended a hearing on 7 January 2020 and by its decision dated 3 April 2020, the appeal was dismissed.  For the reasons set out in [59] to [77], the Board found that the applicant’s evidence was evasive and unreliable and that he had exaggerated and fabricated his claim.  The Board pointed out that the applicant has been a member of the BNP for over 20 years and it was incredible that the AL people did not target him anytime earlier.  Further, it was implausible that the applicant could have easily escaped during the one of the kidnaps and his evidence as to whether the kidnappers had weapons was inconsistent.  It was also unreasonable that he did not seek help from BNP.  The applicant had obtained a visa to go to Malaysia but he did not go there as there was no business opportunity, which demonstrated that his fear for safety was not imminent and real.   Relevant country of origin information (“COI”) suggested that there is reasonable state protection [78] – [83] and as the applicant was only an ordinary member of BNP and he had ceased his BNP activities since 2002. It was unbelievable that the AL people had relentlessly pursued him and would still be interested in him after all these years and he should be safe to return to his family in Bangladesh [84] – [90].  For the aforesaid reasons, the Board dismissed the applicant’s non-refoulement claim on all applicable grounds. 

Application for leave to start judicial review

10.  On 14 April 2020 the applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s and the Board’s decisions.  In his affirmation in support, he pointed out that the Director and the Board were unreasonable and failed to consider all matters and/or to give adequate reasons for their decisions.

11.  On 13 April 2021, the applicant filed an affirmation with the court requesting to withdraw his leave application.  He submitted that his problem had been resolved and he wanted to return to Bangladesh as soon as possible.  Leave was granted to withdraw the leave application on 23 April 2021.

12.  On 7 May 2021 however, the applicant filed another affirmation requesting to re-instate his leave application.  He stated that his problem was not resolved and he had changed his mind.

The JR Decision

13.  The applicant attended an oral hearing on 26 July 2021.  Even though the Judge had grave doubts as to the reasons for reinstating the leave application, the Judge nonetheless granted the application and focused on the merits of the intended judicial review.  After due consideration of the Board’s decision, the Judge refused to grant leave to apply for judicial review for the reasons set out in [23] - [25] of the JR Decision:

“23. In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational.  The finding of facts is the duties of the TCAB and the Director. In general, this court would not interfere. 

24.The applicant had not pointed out any specific error in the decision of the TCAB.  I agree with the findings of the adjudicator.  The applicant is not truthful.  Apart from the inconsistencies pointed out by the adjudicator, his delay in the application for protection substantially affected his credibility.

25. In my judgment, there is no error of law or procedure.  The decision of the TCAB is reasonable.”

Application for extension of time to appeal the JR Decision

14.  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 25 October 2021 for an extension of time to appeal.  That was dismissed by the Judge on 22 February 2022.  Hence, the Summons to this court. 

Discussion

15.  In considering whether to extend time for appealing, 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). 

16.  As for (1), after the Judge’s decision on 22 February 2022, the applicant did not take out a summons in this court until 14 June 2022.  His delay was substantial.   

17.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he did not receive the JR Decision in time.  The court record showed that JR Decision was sent to his last known address on the same day it was handed down and it was not returned as undeliverable mail.  His explanation for the delay was unconvincing.

18.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not put forth any proper or valid proposed grounds of appeal. There is no prospect of success in his intended appeal. 

19.  It was clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility as his evidence was inconsistent, evasive and unreliable.  In any event, relevant COI suggested that there is reasonable state protection and as the applicant has ceased to participate in any BNP activities since 2002, it is not believable that the AL people would still be interested in him after a long lapse of time.   The Board was entitled to reach its findings and conclusion.

20.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we agree with the Judge that there is no prospect of success in the applicant’s intended application for judicial review and leave for judicial review should be refused.

21.  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 14 June 2022.