RE MD SHAH ALAM

CAMP 516/2022, [2023] HKCA 1158

On Appeal From [2022] HKCFI 750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 516 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1892 OF 2019)

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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 23 March 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant for leave to apply for judicial review concerning his non-refoulement claim (“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 10 October 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 3 November 2022.

3.  On 6 December 2022, the applicant filed a summons in CAMP 516/2022 (“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 6 December 2022, the applicant lodged his written submissions on 20 December 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 said he entered Hong Kong illegally on 20 March 2007. He was arrested by the police the next day. He raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment alleging that if refouled, he would be harmed or killed by Abdul who was a Member of Parliament of Khagrachari District and some other Bangladesh National Party (“BNP”) members because he was a member of the opposing political party Awami League (“AL”). He also claimed that he might be at risk of capital punishment because he might face an unfair murder trial. His torture claim was rejected by the Director of Immigration (“the Director”) on 17 June 2013 (“the Director’s 1^st Decision”) and his appeal was dismissed by Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) on 16 October 2013. He did not appeal.

7.  On 26 July 2018, he raised a non-refoulement claim on the same basis.

8.  By a Notice of Decision dated 29 August 2018, the Director decided against the applicant’s claims (“the Director’s 2^nd Decision”). The Director’s 2^nd Decision covered the BOR 2 risk[1] the BOR 3 risk[2], and the persecution risk.[3]

9.  The applicant appealed the Director’s 2^nd decision to the Board. The applicant attended an oral hearing on 6 May 2019 and by its decision dated 18 June 2019, the Board dismissed the applicant’s appeal. For the reasons set out at [121] – [142], the Board found that the applicant is not a witness of truth and that he has fabricated his claims in relation to his involvement with AL and his active support of the peace agreement made by the AL and the tribal people. His evidence as to when he joined AL and his participation in it was contradictory. The Board also rejected the applicant’s evidence that he was threatened or harmed by BNP members and it found that there was never a false murder case against him. The applicant’s own case as to when and where he hid was inconsistent. In light of the aforesaid findings, the Board considered that the applicant would not face a real risk of any of the proscribed forms of harm should he return to Bangladesh and his non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.  On 8 July 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision. He did not provide any valid grounds for relief in his Form and the supporting affirmation.

11.  On 15 February 2022 however, the applicant filed an affirmation requesting to withdraw his application, saying that he had no problem in his home country and he wanted to return as soon as possible.

The JR Decision

12.  The Judge disposed of the application on paper. On 23 March 2022, the Judge said in the Call-1 form that in view of the applicant’s wish to withdraw his application, the application served no practical purpose and it was dismissed.

Application for extension of time to appeal the JR Decision

13.  However, on 10 October 2022, the applicant filed a summons in the Court of First Instance to appeal against the JR Decision out of time. That was dismissed by the Judge on 3 November 2022. Hence, the Summons to this court.

Discussion

14.  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).

15.  As for (1), the applicant was late by more than 6 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.

16.  As for (2), the reasons for the delay, the applicant said in his supporting affirmation in the CFI that his enemies misled his family to believe that his problem was solved, but in fact his enemies intended to kill him upon his return to Bangladesh, and therefore he did not want to return home. There was no supporting evidence, eg as to how his family was misled, when and how they discovered the enemies’ intention, and how, etc.

17.  In the Summons filed with this Court, he said he did not receive the JR Decision in time. The court file showed that the JR Decision was sent to his last reported address (which is the same as the one stated in his summons dated 10 October 2022) on the same day it was handed down without being returned as undeliverable mail.

18.  In the above circumstances, we see no good reason for the substantial delay.

19.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the JR Decision either in his summons or in his affirmation.

20.  In the Summons and supporting affirmation filed with this Court, the applicant did not advance any proper or valid proposed grounds of appeal, or any particulars of any error in the JR Decision save for saying that he did not agree with the Judge’s decisions.

21.  In his written submissions, he reiterated the factual allegations that he would face a threat to his life from his enemy if refouled. However, the Director and the Board rejected his non-refoulement claim and the Court of First Instance dismissed his application. He urged the Court of Appeal to grant him leave to proceed with his appeal.

22.  It is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility and it found that the applicant had fabricated his claims in relation to his involvement and participation in the political activities of AL. The Board was not convinced that the applicant was a member or active supporter of AL, nor that he was threatened or harmed by BNP members. These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds. We see none in this case.

23.  In our judgment, the Judge was plainly right to dismiss the applicant’s application for leave to apply for judicial review upon his own request to withdraw the application and there were no merits in any event.

24.  As the intended appeal is unarguable and without merit, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 6 December 2022.