RE MAHABOB

CAMP 319/2021

[2022] HKCA 1128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 319 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2272 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 26 April 2021, DHCJ To (“the Judge”)  refused to give the applicant leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). 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 24 May 2021 for extension of time to appeal.  That summons was dismissed by the Judge on 2 July 2021.

3.  On 5 August 2021, the applicant filed his summons in CAMP 319/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 5 August 2021, the applicant lodged his written submissions in support of the Summons on 19 August 2021.

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 Bangladeshi national. He entered Hong Kong illegally on 19 July 2015 and surrendered to the Immigration Department on 23 July 2015.  On 24 September 2015, he lodged his non-refoulement claim alleging that if refouled, he will be harmed or even killed by members of the Awami League (“AL”)  party due to political enmity as he was a member of the opposition party Bangladesh Nationalist Party (“BNP”).   The factual background of this case was succinctly summarised by the Judge at [6] – [9] of the JR Decision ([2021] HKCFI 1151).

7.  By a Notice of Decision dated 22 March 2018, the Director of Immigration (“the Director”)  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].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 28 September 2018.  By its decision dated 10 October 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [50] to [85], the Board had serious concerns about his credibility due to his low level of knowledge of the BNP (eg he could not describe its flag or symbols or comment on its aims/objectives)  and the electoral history of Bangladesh (e.g. the year when elections took place).  It also found many inconsistencies between his oral evidence and the information he submitted to the Director. The Board thus found that the applicant was not a truthful witness and it did not accept that he joined the BNP as a member or worker in 2007 or later became the Vice President of the student wing of BNP as claimed.   As such, the Board did not accept that the applicant was or is of any adverse interest to the AL and found that he would not be at risk of any harm if refouled.  For the aforesaid reasons, his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 19 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and Board’s decisions and he advanced the following grounds:

(1)  The Board’s decision is not reasonable and fair as required by the Wednesbury test.

(2)  The Director or the Board failed to give weight to the presence of state acquiescence in that he was tortured at the behest of the state law enforcement agencies and those in high up levels of political circles;

(3)  The Board failed to give weight to the Country of origin information (“COI”)  in support of his case.

(4)  The Director or the Board failed to attain the high standard of fairness required by the Wednesbury test by failing to consider that the corruption and incompetence of the administration in Bangladesh are still very serious problems.

10.  In his skeleton submission dated 5 June 2020, the applicant advanced three further grounds:

(5)  The Board’s finding on his credibility was speculative and based on assumptions and not on objective assessment of evidence.

(6)  The Board failed to properly give weight to the COI.

(7)  The Board failed to take into account his risk of harm emanating from his political opinion generally.

The JR Decision

11.  The applicant attended an oral hearing on 14 April 2021.  After due consideration of the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [16] - [25] of the JR Decision:

“Legal principles applicable to judicial reviews

16.   The role of the court in judicial review is not to re-assess the non-refoulement claim 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Ground (2): state acquiescence

17.   Ground (2)  is clearly inapplicable as there was no evidence that the Applicant suffered any torture, let alone at the behest of law enforcement agencies or political dignitaries. On the Applicant’s case, he was not around every time the police came to look for him and then he relocated himself.

Grounds (3)  and (6): COI

18.   Ground (6)  is a duplicate of Ground (3).  The Applicant complains about inappropriate weight being given by the Board to the COI.  He complains that the Board only referred to one piece of COI, which was the The World Fact Book – Bangladesh.

19.   The COI relied on by the Director and presumably by the Board are all from credible and official sources, including Country Policy and Information Note Bangladesh: Background information, including actors of protection, and internal relocation dated January 2018 issued by the United Kingdom Home Office; Country Report on Human Rights Practices for 2016 of Bangladesh published by the United States Department of State; The World Fact Book – Bangladesh updated on 8 March 2018, issued by United States Central Intelligence Agency; and newspaper reports.  In fact, the Board referred to the COI and discussed with Applicant at the oral hearing.  The Board discussed about the Police Internal Oversight service in the context of corruption, police efficiency and professionalism.  The Board discussed newspaper reports about arrests and prosecution of AL leaders.  The Board accepted from the COI that AL was the ruling party in power.  It also accepted there was political violence during the election in 2014 but not in 2015, which was fatal to the Applicant’s credibility.  The Board did not refer to just one piece of COI as asserted by the Applicant.

20.   The Applicant complained that the Board failed to investigate and/or consider the COI relating to political persecution, corruption, abuse of power etc or gave reason why no weight was given to those COI.  The weight to be given to the COI is a finding of facts by the Board.  The Board did not seem to have come to a conclusion about those COI and the conflicting COI concerning government’s efforts in combating corruption and arrests of senior police and government officials for corruption.  However, the Board did discuss those COI, the Police Internal Oversight service and the arrests in the Nasirnagar incident with the Applicant.  Understandably, it was not necessary for the Board to come to a definitive view what weight to be given to the conflicting COI because the Applicant did not even pass the primary hurdle of proving his factual case that his fear and risk were genuine.

Ground (5): Board’s finding of his incredibility

21.   The Applicant challenged the Board’s finding of his incredibility.  Finding of credibility of witnesses and finding of facts are matters solely within the realm of the Board.  The Board had heard the evidence, observed the witness’ demeanour and was in the best position to decide his credibility.  The Board referred to section 37ZD of the Immigration Ordinance in relation to the factors which may be taken into account as damaging the credibility of an applicant for non-refoulement protection.  It bore in mind the low standard of proof required of such a witness.  It gave generous allowance for understandable bewilderment, fright and desperateness of the Applicant.  It spent almost five pages in analysing his evidence and assessing his credibility.  The Board expressed its concerns and reasons for its assessment of the Applicant’s credibility.

22.   The Applicant said that the Board’s assessment was speculation only and not based on objective facts.  The Court disagreed with the Applicant’s proposition.  Finding of credibility is often a matter of inference to be drawn from primary facts.  There is a distinction between drawing inference from facts which the Board is satisfied with and speculation which is not based on any fact.  The Board had clearly set out the basis for its finding why the Applicant was not to be believed.  The finding is neither erroneous in law, nor irrational nor made as a result of procedural unfairness.

Ground (7): harm emanating from the Applicant’s political opinion

23.   The Applicant complained that the Board wrongly categorised the basis of his claim as being a grudge harboured by AL and failed to appreciate that his fear emanated from his membership of BNP and his political opinion.   Shortly put, the Board never categorised the basis of his claim as being a grudge.  The Board found that he failed to discharge the burden of proving his fears and risks.

24.   The Applicant said in his affirmation that he has recently obtained notarised copies of the certificate from the BNP to prove his case.  However, when asked what those copies were, he said he did not have the documents.  He was not specific what documents he had.  He said he was prevented from obtaining the documents because of COVID-19 and asked for time after the pandemic is over to produce those documents.  That is a lame excuse.  He said under affirmation in June last year that he had recently obtained the documents.  Now, he said he did not even know what documents he had said he had.  He demonstrated a total lack of good faith in making his affirmation.  His suggestion was only an attempt to delay this Court from making a decision.

Grounds (1)  and (4)

25.   These grounds may be dealt with together.  They are directed against the finding of facts by the Board.  As pointed out earlier, the function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.”

Application for extension of time to appeal the JR Decision

12.  As mentioned earlier, the applicant was late in filing a notice of appeal against the JR Decision.  He filed a summons in the Court of First Instance on 24 May 2021 for extension of time to appeal.  That was dismissed by the Judge on 2 July 2021.  Hence, the Summons to this court.

Discussion

13.  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).

14.  As for (1), the applicant was late by 14 days between the deadline for filing an appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was not insignificant.

15.  As for (2), the reasons for the delay, the applicant explained in his summons and supporting affirmation that he did not get any letter from the court in time.  The court by its letter dated 8 June 2021 requested the applicant to lodge “perfected grounds of appeal” for him to explain his delay and to provide proper grounds for his intended appeal.  The applicant lodged his “perfected grounds of appeal” on 22 June 2021 but failed to give any further details and supporting evidence for the late receipt of the JR Decision as claimed.  That has not been remedied and remains the position on his application to this Court.  The Judge did not consider there was any good reason for his delay and we agree.

16.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not raise any proper ground of appeal in his summons, supporting affirmation and his “perfected grounds of appeal” against the JR Decision save for voicing his disagreement with the Board’s findings and conclusions.  There are no particulars of any error in the JR Decision.

17.  In his written submissions, he repeated the background of his case and said that the current prime minister of Bangladesh is autocratic and would arrest any opposition.

18.  It is clear from the Board’s decision that the applicant’s claim was rejected for lack of credibility. The Board did not accept his evidence that he was politically active in BNP thereby provoking the AL to threaten him, and therefore did not find any real risk of harm upon his return to Bangladesh.  It is perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  As with the Judge, we do not see any in this case.  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 5 August 2021.