Re Sumon Miah

CAMP 106/2018

[2018] HKCA 868

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 106 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 915 OF 2017)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.This is an application for extension of time to appeal against the Decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 5 June 2018 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of Torture Claims Appeal Board dated 8 November 2017 rejecting the applicant’s non-refoulement protection claim.

2.On 30 August 2018, the Registrar of Civil Appeals directed that unless the applicant lodged his written submissions by 7 September 2018, he would be deemed to have no, and be debarred from lodging any, submissions in support of his application for extension of time. Notwithstanding the said direction, the applicant did not lodge any written submission by the deadline.  The Court therefore proceed on the basis that he does not intend to lodge any submission and we process with the application on the basis of materials already lodged.

3.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 Court (Cap 4A).

Background

4.The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 15 April 2009 and was arrested by the police on the same day.  On 10 February 2010, he lodged a non-refoulement claim. 

5.The applicant’s claim was based on his fear that if he were to be refouled to Bangladesh, he would be harmed or even killed by members and supporters of his rival political party Awami League (“AL”) for being allegedly involved in the murder of one of their members, and that he would not be treated fairly by the authority in the legal process in connection with his role in that murder. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1222.

6.By a Notice of Decision dated 9 October 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

7.By a Notice of Further Decision dated 8 March 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

8.The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing on 26 April 2017, at which the Board considered both Decisions of the Director, it dismissed the appeal on 8 November 2017 (“Board’s Decision”).  The Board found the applicant’s account of event was vague and implausible and rejected that (i) he was the president of a political organization; (ii) he was targeted and threatened by rival party and (iii) he was accused and convicted of the murder of a member of rival political party.  The Board also doubted the authenticity of the documents submitted by the applicant which further undermined his credibility: see [81] – [102] of the Board’s Decision.  On the totality of the evidence, the Board was not persuaded that there was a real risk that the applicant would be subject to ill-treatment of any sort if refouled and concluded his non-refoulement protection claim failed on all applicable grounds.

The deputy judge’s decision

9.The applicant filed a Form 86 on 20 November 2017 in which he provided the following grounds of relief:

(1)   the Board had unlawfully fettered its decision by refusing his appeal on the ground that it did not satisfy the relevant legal requirements;

(2)   the Board acted in a procedurally unfair manner in dealing with his appeal;

(3)   the Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense or is the result of procedural errors or unfairness; and

(4)   the Board failed to apply high standards of fairness owed to a self-represented applicant.

10.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form:

“13. These all appear to me just broad and vague statements unsupported by any particulars or specifics, but the applicant has in both his Form 86 and supporting affirmation of the same date referred to various complaints which can be seen as the basis for these grounds and summarized as follows:

(1)   that he was given the hearing bundle for his appeal to the Board only six days before the hearing and therefore insufficient time for him to prepare and to find an interpreter to assist him in his appeal; and

(2)   that the Board has significantly relied on source of news not officially recognized or were merely hearsay or outdated resulting in its groundless speculation of his safe return to Bangladesh.

14.   For his first complaint the applicant claims that he was only given the hearing bundle by the Director on 19 April 2017 while his oral hearing was scheduled before the Board on 26 April 2017, and as all the documents were in English he was unable to find an interpreter to assist him in his appeal, and hence it was procedurally unfair in the circumstances for the Board to reject his claim and dismiss his appeal.

15.   Assuming that he indeed only received the hearing bundle six days before the hearing of his appeal, these are documents that he would be familiar with such as his non-refoulement claim forms, records of his screening process with the Immigration Department and the Director’s decisions which were either prepared by him or on his behalf or when he still had the benefit of legal representation from Duty Lawyer Service.

16.   Furthermore, it is clear that he was assisted by an interpreter at his oral hearing before the Board during which he was able to make representation without any difficulty but never raised any issue or complaint to the adjudicator about the lack of time or language assistance.  In the premises I do not see anything amiss arising from the late provision if any of the hearing bundle to him in the process of his appeal to the Board.

17.   As for his complaint about the Board using unreliable, hearsay or outdated COI in the assessment of his safe return to Bangladesh, again the applicant has failed to provide any particulars or specifics to substantiate such assertion, nevertheless upon examining those COI listed and referred to in their decisions of both the Director and the Board, I am unable to find anything amiss in their reliance of such information, and given that his claim was rejected on credibility as to his account of events that led to his alleged fear upon return to Bangladesh, I do not see any basis or merit in this complaint of the applicant either.

18.   In the premises and having considered both the decisions of the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19.   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.”

Application for extension of time to appeal and grounds for appeal

11.Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  The appeal period expired on 19 June 2018 (as 18 June 2018 was a holiday). He failed to do so.  By a summons dated 11 July 2018, he set out the following:

“I am not satisfied with (the) decision made by Court of First Instance and wish to lodge an application for leave to appeal with the Court of Appeal.

I fear that if I am forced to go back (to) my motherland my life will be definitely in danger.

I did not appeal on time because I was very depressed, disappointed and was not feeling well after learning that my application for leave for judicial review is refused by Court of First Instance.  I am not an educated person and I did not know what to do and felt very low at the time.  I am very positive and feeling better to appeal against it.”

12.In the supporting affirmation, the applicant provided similar grounds as stated in the summons.

13.The applicant did not produce any draft notice of appeal.

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 reason for the delay; (3) the prospect of success 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 for more than one month and the length of delay is substantial.  The applicant failed to provide any satisfactory explanation for the delay in bringing the intended appeal.  We do not find the long delay to be excusable.

16.In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anor [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing & Anor HCMP 3217 of 2015, 22 January 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601 of 2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452 of 2016, 22 November 2016. 

17.The applicant did not include any draft notice of appeal in his documents filed with the court.  He just made a general contention that he was not satisfied with the Judge’s decision and voiced out his fear of danger to his life if refouled.  These complaints are without substance and devoid of merit.

18.In any event, after reviewing the materials placed before the Judge, we agree with the Judge’s decision.  We cannot see any errors of law or procedure in the proceedings before the Director and the Board nor is there any reasonably arguable basis to challenge the fairness of the process.  We agree with the Judge that the applicant’s claims are not reasonably arguable and the intended judicial review has no prospect of success. 

19.The applicant has not put forward any viable ground to challenge the Judge’s decision.  In our judgment, the intended appeal is doomed to fail. 

20.For these reasons, we would not grant an extension of time to the applicant to bring a hopeless appeal.  The summons dated 11 July 2018 is dismissed accordingly.

21.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, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.

The applicant, unrepresented, acted in person