MS v. MS MARY YUEN, ESQ.

CAMP 116/2018

[2018] HKCA 865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 116 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 92 OF 2017)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Extension of time to appeal

1.   Deputy High Court Judge (‘DHCJ’) Marlene Ng on 21 November 2017 refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) dated 20 March 2017.  The applicant now applies for extension of time to appeal against the decision of the Judge.  The application was filed on 17 July 2018 with a supporting affirmation.

1.2   The Registrar of Civil Appeals had on 4 September 2018 rejected the applicant’s request by letter to the Court for extension of time to file written submissions.  The Registrar also rejected the applicant’s request for time to seek documents in Bangladesh.

1.3   This Court will now deal with the application on paper.

2)  Factual background

2.1   The applicant is a Bangladesh national who claimed to have arrived in Hong Kong in September 2006.

2.2   On 5 October 2006, the applicant applied for refugee status but his application was rejected in 2008.

2.3   On 30 March 2008, the applicant was arrested in Hong Kong when his illegal immigration status was discovered.

2.4   On 19 March 2009, the applicant raised his torture claim.  On 23 February 2010, the applicant withdrew his torture claim.  On 2 June 2010, the applicant requested to re-open his torture claim.  The Director of Immigration (‘Director’) acceded to the applicant’s request.

2.5   On 15 May 2014, the applicant submitted a non‑refoulement claim form (‘NCF’) with the assistance of his duty lawyer.  On 4 August 2014, the applicant attended the Immigration Department for a screening interview.

2.6   In essence, it was the applicant’s case that he was suspected to be involved in the killing of an Awami League (‘AL’) member in a fight during the municipal election held on 26 June 2006.  He believed he was one of the named suspects in the murder charge. He was worried that he might be arrested by the police on his return to Bangladesh.  As the deceased was an AL member the applicant was also concerned that the AL members would not spare him.

2.7   In about 1999, the applicant became a member of the political party, Bangladesh Nationalist Party (‘BNP’).  He received wages for work done for BNP political activities.

2.8   On around 26 June 2006, the applicant alleged that there was a fight between members of BNP and AL in which an AL member was fatally stabbed on his neck.  He alleged that he fled the scene on an 8-hour journey elsewhere to receive medical treatment.  He said he did not report to the police because he was afraid he may be arrested.  He said his family members told him that the police were looking for him in order to arrest him for murder.  He alleged that a person called H told him to leave for India as the Bangladeshi authorities were looking for him all over the country.  He alleged that he left for India around late June 2006 on the strength of his passport.  H then told the applicant to return to Bangladesh to hide, and so he did.  Subsequently, with the assistance of H, the applicant left Bangladesh for China on the strength of his passport without any problem.

2.9   The applicant alleged that internal relocation was not possible for him, as he would be caught anywhere in Bangladesh by the authorities and there was a murder case against him. He also alleged that AL had eyes everywhere in Bangladesh.

3)  The Director’s Decision

3.   The Director decided against the applicant’s torture claim on 6 October 2014.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

4)  The Board’s Decision

4.   The applicant appealed against the Director’s Decision to the Board.  The oral hearing was conducted on 20 April 2015.   The Board dismissed the applicant’s appeal on 20 March 2017.  The Board did not accept the applicant’s allegations by reasons of, amongst other things, his lack of creditability.

5)  Decision of the Judge

5.   The Judge stated that she was unable to fault the Board’s decision.  The Board analyzed the materials, claims and evidence, and applied the correct standard of proof.  The applicant’s complaints were not made out.  She found that there was no substance in the applicant’s application, and he did not avail himself of the opportunity to present his case before the Judge on the hearing date.  She found that the applicant made complaints against the Board where the Board had never even touched upon such issues.  She found that the applicant was able to enter and exit Bangladesh three times after the alleged killing incident in June 2006 without ever being stopped or arrested despite his assertion that there was a warrant for his arrest for a murder charge particularly unconvincing.  She found there was no need for the Board to consider COI materials, but the Board did consider them, and the Judge found that the assessment cannot be faulted.  The Judge found that the applicant could not prove that there was a real risk of harm against him.  In conclusion, the Judge was unable to find any error of law by the Board.  There was no evidence of procedural unfairness or failure to adhere to a high standard of fairness.  The Board’s Decision was not Wednesbury unreasonable.  The applicant’s claim was not reasonably arguable.  There was no realistic prospect of success, and his application for leave to judicial review was refused.

6)  Grounds for extension of time

6.1   The summons of 17 July 2018 stated in gist :

‘ …I never got any letter from high court and I never taken any …’ (‘Receipt Argument’)

6.2   As for the content of the supporting affirmation in the applicant’s Summons Application, it contained similar wordings :

‘ I like to tell through this ground I was unable to appeal this case, because I never got any letter from high court, and I got this refuse letter at around 13th of July 2018. Therefore I am submit my appeal application …’ (‘Delay Argument’)

7)  Legal principles

7.   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) Length of the delay;

(2) Reasons for the delay;

(3) Prospect of the intended appeal; and

(4) Prejudice to the putative respondent if extension of time was granted.

8)  Analysis

(1)   Length of delay and reasons for the delay

8.1   The original deadline for the applicant to lodge his appeal against the decision of the Judge was on or before 5 December 2017, being 14 days from 21 November 2017, see Order 53, rule 3(4) of the Rules of High Court, Cap. 4A.  The applicant made his application on 17 July 2018, which was more than seven months of delay. The delay was substantial.

8.2   The applicant’s Delay Argument of only receiving notifications from the High Court on 13 July 2018 is a bare allegation unsupported by evidence.  This argument has no merit.  The decision of the Judge was sent by post to the address provided by the applicant on 21 November 2017.  This argument does not constitute a satisfactory explanation for the delay.  Further, it is illogical for the applicant to say that he never received any letter from the Court (‘the Receipt Argument’), and at the same time, he received the Court’s refusal letter on 13 July 2018.  There was an utter lack of explanation of how this was the case.

(2) Merits of his intended appeal

8.3   The applicant has not advanced any grounds on the merits of his appeal.  Having considered the decisions below, we do not find there is any merit in the intended appeal.

9)  Disposition

9.1   For these reasons the application is refused.

9.2   Since 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 for our determination to be reconsidered at an oral hearing.