RE MD SIRAJUL ISLAM

CAMP 99/2018

[2018] HKCA 895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 99 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 496 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 4 July 2018, the applicant applies for leave to appeal out of time the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 24 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 29 June 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 20 January 2016 and 8 December 2016 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 has not any written submission to support his application, despite directions and an unless order given by the Registrar of Civil Appeals.  We have therefore determined the application on the basis of the papers filed in Court.

4.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally and was arrested by the police on 1 June 2014.  On 4 June 2014, he raised a non-refoulment claim based on his fear of being harmed or killed by supporters of the Awami League party (“AL”) because he did not pay protection money to them.

5.  The applicant’s case was set out in detail in the decisions of the Director and the Board, and summarized by the Judge at [3] to [6] of the Form CALL-1 dated 24 May 2018, [2018] HKCFI 1054.  In brief, in 2009 the applicant and his friend started a business selling agricultural produce.  Not long afterwards, five men armed with pistols came to the shop to demand payment in return for protection from the AL.  The applicant could not afford the payment.  He had since received many threatening phone calls.  Then one day he was kidnapped, in the course of which he received a chop wound to his knee.  After he managed to escape, he learnt that the attackers were looking for him.  Fearing for his safety, he left Bangladesh for China, from where he came to Hong Kong illegally.

6.  By a Notice of Decision dated 20 January 2016 and a Notice of Further Decision dated 8 December 2016, 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] grounds, and the further decision was an assessment of the BOR 2 risk[4] ground.

7.  The Board heard the applicant’s appeal against the Director’s rejection of his claim at an oral hearing.  The applicant confirmed and adopted the materials in the appeal bundle as his evidence for the appeal.  He elected not to give evidence despite having been told that this would mean the Board would not have the benefit of receiving and considering his further evidence on issues that required clarification or elaboration.  By its decision dated 29 June 2017, the Board dismissed the appeal and gave its reasons in [42] to [65] of the decision.

8.  On 8 August 2017, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  At his request, an oral hearing took place on 10 January 2018.  The Judge refused to give leave to apply for judicial review.  In [12] to [18] of the Form CALL-1, the Judge set out the applicant’s grounds for judicial review and her reasons for rejecting them as follows:

“12. There are eight grounds in this affirmation and most contain no particulars. Those include ground 5, 6, 7 and 8. As an example, for ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation. For ground 7, the adjudicator certainly set out the correct standard of proof in his decision. There are no particulars here to illustrate where he has applied the incorrect standard. For ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. These grounds have no merits.

13. In grounds, 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date COI information and research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. The adjudicator considered COI material and State protection; he cited his references clearly. He had no reason to go into great detail considering the reason he dismissed the applicant’s appeal yet he did. These grounds are not arguable.

14. Ground 3, a failure to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights, has no merits. The adjudicator did not believe the applicant was a witness of truth; not a genuine claimant. He had no need to go on to evaluate or make such a finding of fact in relation to any violations of human rights in Bangladesh under such circumstances. There is no merit in this ground.

15. In addition, the applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. I was satisfied the applicant had the assistance of an interpreter and he confirmed during the oral hearing to this court that he had the procedure of the hearing explained to him by the interpreter at the appeal. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

16. The applicant complains that he answered all the questions honestly and he is aggravated that his credibility was found questionable. However, this complaint or submission is misleading when the applicant elected during the appeal hearing to remain silent and not answer questions or give evidence.

17. When asked if the applicant had any further submissions during the oral hearing of this application, the applicant repeated on several occasions that all he required was another two years in Hong Kong before he returned to Bangladesh.

18. I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.”

9.  The 14-day period[5] for the applicant to appeal the decision of the Judge expired on 7 June 2018.  On 4 July 2018, the applicant took out the present summons seeking 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). 

11.  The applicant was late by one month, which is not insubstantial.  Neither in the summons nor in the affirmation did the applicant explain the delay.    

12.  We next consider the prospect of success of the applicant’s intended appeal which is a crucial factor in determining whether the Court should exercise its discretion to grant an extension of time for appeal: 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. 

13.  The applicant advanced two grounds of appeal in his affirmation:

(1)   The Judge was wrong in law in holding that there was no state acquiescence or involvement.  

(2)   The Judge failed to provide detailed reason in support of her decision.  

14.  Ground (1) is misplaced.  Contrary to the applicant’s assertion, the Judge did not discuss, let alone make any finding or ruling on, state acquiescence or involvement. 

15.  Ground (2) is unarguable having regard to the detailed reasons given in the Form CALL-1 (see [8] above).

16.  The applicant’s intended appeal has no prospect of success.  This being the case, it would be futile to grant leave to appeal out of time.  In the premises, and having regard also to the lack of explanation for the delay, we refuse the application for leave to appeal out of time. Accordingly, the summons is dismissed.

17.  Since the present 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.