RE KHALEQUE

CAMP 301/2022, [2023] HKCA 1041

On Appeal From [2021] HKCFI 1845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 301 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2588 OF 2018)

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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 25 June 2021, DHCJ To (“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 13 April 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 22 July 2022.

3.  On 12 August 2022, the applicant filed his summons in CAMP 301/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the Judge’s decision dated 22 July 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.  In compliance with the directions made by the Registrar of Civil Appeals on 12 August 2022, the applicant lodged his written submissions on 26 August 2022.

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 entered Hong Kong illegally on 21 December 2015 and surrendered to the Immigration Department the next day.  On 11 November 2016, he lodged a non-refoulement claim alleging that if refouled, he would be harmed or even killed by members of the Awami League (“AL”) as he was a member of a rival political party Islami Chhatra Shibir (“CS”), the student wing of Jamaat-e-Islami (“JEI”) and a false charge of murder had been laid against him.  The factual background of this case was succinctly summarised by the Judge at [5] – [14] of the JR Decision ([2021] HKCFI 1845).

7.  By a Notice of Decision dated 27 October 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

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 7 August 2018.  By its decision dated 24 September 2018, the Board dismissed the appeal.  For the reasons set out at [32] to [50], the Board found that the applicant’s evidence was inconsistent, illogical and implausible.  For example, the Board noted that having previously claimed that he was a senior secretary, the applicant said he rejected the position as there was no reason for him to do so [32].  The Board also questioned why he invited his attackers to his wedding and rejected his explanation for being inconsistent with his evidence as to when he took over his father’s business [34].  The Board found that the applicant would not face any real risk of proscribed harm from the assailants, supporters of AL and/or the Bangladesh authorities if refouled and his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 19 November 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  He did not advance any specific grounds in his Form or supporting affirmation save for saying that the AL terrorists wanted to kill him.

The JR Decision

10.  An oral hearing was fixed for 15 June 2021 but the applicant failed to attend without any explanation and the Judge proceeded to dispose 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 [22] - [24] of the JR Decision:

“22. His affirmation, at the highest, is a challenge of the Board’s findings of facts. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration^[5]. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

23. An applicant has to prove not only that his fears and risks are genuine, but also they fall within the criteria set out under the four applicable grounds. On the basis of his evidence, the Board was not satisfied that the Applicant has proved his fears and risks are genuine and that those fears and risks fall within the criteria. It found that the Applicant had failed to discharge the burden of proving his fears and risks and his entitlement to non-refoulement protection on all applicable grounds. The Board gave reasons for its Decision. These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.

24. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.”

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 13 April 2022 for an extension of time to appeal.  That was dismissed by the Judge on 22 July 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 more than 8 months between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was very substantial.

14.  As for (2), the reasons for the delay, the applicant explained that he was arrested by the police on 2 August 2021 for taking up unlawful employment and subsequently sentenced to 15 months’ imprisonment.  He was released from prison on 2 April 2022.  By the time he was released, the Registry of the High Court was closed due to Covid-19 pandemic and he took out the summons once the Registry was re-opened.  However, as the JR Decision was posted to the applicant on 25 June 2021 without being returned as undeliverable mail, the applicant should have received it well before his arrest on 2 August 2021.  Accordingly, we are not satisfied with his reasons for the delay.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The Applicant advanced two grounds of appeal, in gist (i) the Board had failed to adhere to the high standard of fairness in reaching its decision and that the Board ought to have considered the relevant country of origin information; and (ii) the Board and the court had failed to attain the minimum standards of procedural fairness in its decision making process.  These grounds were broad and general and the applicant gave no particulars of how the Board or the court was in breach of the principles. 

16.  In his written submissions, the applicant quoted cases on the high standards of fairness required and asserted without particulars that the Board had acted in a procedurally unfair manner without properly assessing his credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is concerned with the late filing of notice of appeal to the Board.  However, he did not explain or elaborate on how the aforesaid cases and legal provisions were relevant to his case.

17.  It is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility and it was found that the applicant had fabricated his case and that he would not face any real risk of harm if refouled.  The Board was entitled to reach its findings and conclusions and we see no basis on any public law grounds to intervene. 

18.  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.

19.  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 12 August 2022.