Re Monjur Hossain

CAMP 77/2018

[2018] HKCA 476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 77OF 2018

(ON AN INTENDED APPEAL FROM HCAL 247/2017)

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Before: Hon Cheung CJHC and Lam VP in Court

Date of Judgment: 7 August 2018

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.This is an application for an extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan on 4 May 2018 refusing leave to the applicant to apply for judicial review.  The intended application for judicial review was in respect of the decision of the Torture Claims Appeal Board dated 7 March 2017 dismissing his appeal against the decision of the Director of Immigration dated 13 January 2015 rejecting the applicant’s non-refoulement claim.

2.Pursuant to the directions of the Registrar of Civil Appeals on 29 May 2018, the applicant was required to lodge two sets of written submissions by 15 June 2018.  Instead of lodging written submissions as directed, the applicant sent a letter to the court on 12 June 2018, in which it was indicated that the applicant was an unrepresented litigant.  The applicant made no substantive submission in the letter.

3.Though the applicant asked for an oral hearing, we see no reason why we should depart from the usual practice of processing applications of this nature on the papers. Having reviewed the materials before us, we consider it appropriate to determine the application without a hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Courts (Cap 4A).

Background

4.The applicant is a national of Bangladesh.  He arrived in Hong Kong on 1 December 2006 illegally by using a passport under a different identity.  This was not the applicant’s first arrival in Hong Kong.  He had entered Hong Kong by using his own passport in 2000.  He overstayed and was deported in 2003.  He entered Hong Kong in 2005 again using a false passport.  He had returned to Bangladesh at least twice between 2005 and 2006.  He was arrested by the police on 1 February 2008.  He lodged his torture claim on 17 June 2009.  After the unified screening mechanism came into operation in March 2014, the applicant’s torture claim was assessed on all applicable grounds under the scheme.

5.The applicant’s claim was based on two sources of fear if he returned to Bangladesh.  First, it was feared that he would be harmed, or even killed, by the local “area commissioner” named Saidur and his associates because of the applicant’s withdrawal from committing unlawful acts at the behest of Saidur.  Secondly, the applicant feared that he would be subjected to harm or persecution by his eldest brother and other members of his family because he married a non-Muslim woman in Hong Kong in 2011.  That marriage had been dissolved in 2013 by divorce.

6.By a notice of decision dated 13 January 2015, the director rejected the applicant’s claim.  Having considered the extent and frequency of the past treatments by Saidur and his associates, the director was not satisfied that the applicant would face a genuine and substantial risk of ill-treatments by them.  The applicant’s fear that he would be killed was only based on speculation without supporting evidence.  The director did not consider the attacks by Saidur and his associates to be politically related.  The director also took the view that, as the applicant’s previous marriage had been dissolved, the fear based on the inter-marriage should have been dissipated. It was also assessed that the availability of state protection and the viability of internal relocation would lower or negate the perceived risk of harm.  The decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk [3].

7.The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 8 June 2016, the board dismissed the applicant’s appeal on 7 March 2017.  The board found that the general credibility of the applicant was doubtful and that his repeated returns to Bangladesh were inconsistent with his perceived fear.  Furthermore, the board found that the applicant’s claims were based on unsupported assertions and pure speculation.  On the totality of evidence, the board was not persuaded that there was a real chance, if the applicant were to return to Bangladesh, that he would be seriously harmed, or even killed by Saidur and associates, or he would be subjected to persecution or discrimination because of his inter-religious marriage.

8.By a notice of further decision dated 20 April 2017, the director also considered the BOR 2 risk[4] and decided against the applicant in that respect.  No appeal was lodged in respect of this further decision of the director.

9.The applicant filed a form 86 on 29 May 2017. Neither the form 86 nor the supporting affirmation made on 29 May 2017 contained any grounds for seeking relief.

10.After summarizing the background of the case and giving consideration to the decisions of the director and the board, the deputy judge gave the following reasons in refusing leave at paragraphs 12 to 13 of the CALL-1 Form:

“ 12. … with rigorous examination and anxious scrutiny I have proceeded to consider the Board’s decision as well as both decisions of the Director, but I do not find any error of law or procedural unfairness in any of their decisions, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim. On the facts of the case and on the Board’s findings as to his credibility for the reasons given, I am unable to think of any ground which the applicant could have relied on that may be said to be arguable in his intended application.

13. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

11.According to the court record, the CALL-1 form and the deputy judge’s order were sent to the applicant by post on 4 May 2018.

Application for an extension of time to appeal

12.Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 28 May 2018, he applied for an extension of time to appeal.  It was stated in the summons that he had applied for legal aid and he was still waiting for the decision of the Legal Aid Department.  It was further stated that he did not have the ability and did not know what to do.  His application was supported by an affirmation dated 28 May 2018.  In the affirmation, it was deposed that he only received the order in person on 23 May 2018. 

13.The applicant did not have any draft Notice of Appeal attached to the summons or exhibited to the supporting affirmation.

Discussion

14.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 respondent if extension of time was granted.

15.In this case, the applicant was late by 10 days.  The length of delay is not very long. Notwithstanding so, the Court must have regard to the merit in the intended appeal, see Saqlain Muhammad [2018] HKCA 346 at [11].

16.While the applicant’s allegation that he only received the papers 23 May 2018 was supported by the Confirmation of Receipt in the court record, he did not explain why he failed to get the papers earlier in the ordinary course of post.  We note that the applicant’s address stated in the summons for extension of time to appeal and his supporting affirmation of 28 May 2018 was different from the one stated in his form 86.  The applicant did not give to the court below any notice of change of address.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  That duty entails timely notification to the court of any change of address. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant, see: Saqlain Muhammad [2018] HKCA 346 at [10]; Islam Raja Rais v Director or Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board & Anor [2018] HKCA 82.

17.The crucial consideration in this application is whether the applicant can show that there is a reasonable prospect of success in the intended application for judicial review. 

18.Although the court will adopt an enhanced standard in scrutinizing the decision of the board due to the seriousness of issue at hand, the primary decision maker is still the board and the director.  The court should not usurp its role as such: see Re Sheikh Iddris [2018] HKCA 2; Re Traore Ali [2018] HKCA 92; and Re Masoom Parvez [2018] HKCA 163.   

19.Having considered the travelling history of the applicant and the inherent inconsistency in his assertions, the board’s doubt on the applicant’s credibility was fully justified.  The applicant has not advanced any reason for us to differ.  Given the applicant’s claim was based on his own assertion, and in light of the board’s conclusion on credibility, there is no substantial ground for believing that the applicant would face a real risk of being subjected to ill-treatments that meet the high threshold as required by law, see: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraphs 172 to 174.  The board was plainly correct to come to the conclusion on the lack of real risk.

20.Like the deputy judge, we do not see any errors of law or procedure in the proceedings before the board.  Nor can we discern any reasonable basis to challenge the fairness of the process. 

21.Though the BOR 2 risk had not been subject to an appeal to the board, we cannot see any ground for intervention with the decision of the director in that regard.  On the materials presented, we do not see any scope for finding otherwise in light of the assessment as to the lack of risk of substantial harm.

22.In our view, there is no prospect of success in the intended judicial review.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 28 May 2018 is dismissed accordingly.

23.We are of the view that the application is totally devoid of merits.  Pursuant to Order 59 rule 2A(8) of the Rules of the High Court (Cap 4A), we order that no party may request this determination be reconsidered at an oral hearing inter partes.

The applicant acting in person