Re Islam Md Rafiqul

CAMP 157/2020

[2022] HKCA 367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 157 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 443 OF 2017)

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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 April 2018, DHCJ Woodcock (“Deputy Judge Woodcock”) refused to give the applicant leave to apply for judicial review proceedings 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. The deadline was therefore 7 May 2018.

2.The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 11 May 2020 for extension of time to appeal (which was late by about 2 years).  That summons was dismissed by DHCJ K.W. Lung (“Deputy Judge Lung”) on 24 July 2020. 

3.On 9 September 2020, the applicant filed his summons in CAMP 157/2020 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.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.  In compliance with the directions made by the Registrar of Civil Appeals on 28 December 2020, the applicant filed his written submissions on 6 January 2021.

Background

5.The brief background is as follows.  The applicant is a Bangladeshi national.  He received formal education up to class 8 in a high school and worked as a farmer from 1988 until he started a business of cosmetics in 1995 which turned out to be successful and profitable.  He was also an ordinary member of the Bangladesh Nationalist Party (“BNP”) and participated in political activities in his area.  In about late 2011, a gang of 15 to 20 men sent by a Mr Butu who was the Chairman of the Awami League (“AL”), which was then in power, went to the applicant’s house and demanded extortion money.  As the applicant refused to pay, the gangsters vandalized his house and threatened to kill him.  The applicant reported the matter to the police but the police refused to investigate.  He also approached a branch BNP Chairman for assistance. 

6.A similar demand for extortion money happened in early 2012 when the same gang with sticks and a gun came to the applicant’s house and vandalised it.  Once again, the applicant made a police report and approached the branch BNP Chairman for help.  Nothing eventful then happened from early 2012 to April 2014.  On 14 April 2014, Mr Butu together with his men came to the applicant’s shop and demanded one million Bangladeshi Takas.  The applicant asked the president of the market who was also a senior member of AL for help.  The applicant closed his shop immediately and left for Dhaka where he hid for several months.  On 13 August 2014, he left Bangladesh and arrived in Hong Kong on 17 August 2014.  He was arrested by the police on the same day.  On 20 August 2014, he raised his non-refoulement claim on the basis that if he were return to Bangladesh, he would be harmed or even killed by Mr Butu and his gang as he refused to pay him extortion money for his business.

7.By the Notice of Decision dated 11 April 2016 and Notice of Further Decision dated 9 June 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions 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 12 June 2017 and by its decision dated 18 July 2017, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [15] to [17] the Board accepted the applicant’s version of events that he faced demands for extortion money for his business.  After considering the relevant Country of origin information (“COI”), the Board considered that reasonable state protection was available to the applicant.  Besides, as the applicant joined BNP in 1987 and the incident of extortion of money did not occur until 24 years later, his political background should have nothing to do with the extortion. In none of the incidents did Mr Butu and gang inflict any physical harm on him and the applicant was able to get effective assistance from the branch BNP Chairman which suggested that the risk of ill-treatment was not real and substantial.  Further, there was no evidence of state involvement or acquiescence, and internal relocation is a reasonable and viable option.  For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.  

Application for leave to start judicial review

9.On 25 July 2017, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  In his supporting affirmation, he advanced the following grounds for relief:

(1)     The appeal bundle was supplied to the applicant at a late stage and he did not have sufficient time to prepare for the hearing before the Board.  As the documents in the bundle were all in English without any interpretation or language assistance, it caused confusion to the applicant at the hearing.

(2)     Although the applicant answered all questions honestly, the Board disbelieved him.

(3)     The Board relied on COI which was outdated and hearsay and not officially recognised.

The JR Decision

10.The application was heard on 19 December 2017 and the applicant was assisted by an interpreter at the hearing. 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 leave to apply for judicial review for reasons set out in [10] - [15] of the JR Decision:

“10.     I have considered, with rigorous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analyzed the material, claims and evidence carefully.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application; they are not substantiated.

11.     It is a ground in the affirmation that the appeal bundle was supplied to the applicant late, it was in English and he did not have sufficient time to prepare for the appeal hearing.  As a result, he was confused in terms of what was happening at the hearing.  However, there are no particulars in the affirmation as to what the applicant found confusing.  Moreover, in the decision there is no indication of his confusion or a record of his confusion.  The applicant did not voice out his confusion or complaint to the adjudicator.  There was an interpreter there to assist the applicant who could have helped him if required.  I see no merit in this ground.

12.     The second ground is a criticism of the adjudicator for disbelieving the applicant.  The applicant says he answered all the adjudicator’s questions honestly yet the adjudicator did not believe him.  The adjudicator accepted most of the applicant’s evidence except for some aspects such as why he left Bangladesh, why he was not safe living in Dhaka and whether Butu was still looking for him to date.  In essence, the adjudicator found him credible.

13.     The last ground was a criticism that the TCAB relied on COI that was hearsay, out of date and not officially recognized.  The TCAB would have had the COI referred to by the Director in the appeal bundle.  The adjudicator says he asked the applicant if he had any comments on it.  The adjudicator said he considered the COI material, he then set out the facts he accepted from the material such as the police in Bangladesh are perceived to be incompetent and corrupt but there are ongoing reforms in Bangladesh to improve the police effectiveness and there is a system for complaints against the police corruption.

14.     I know the adjudicator would have been referring to the COI referred to by the Director.  The Director in his decision gave full citations and references to the publications he referred to and quoted from, including paragraph numbers.  This is what the adjudicator omitted in his decision.  This detail is necessary so the applicant can be aware of the publications the adjudicator was referring to in his decision-making process.  However, this omission is not fatal nor material when read in the context of the entire decision.  If the decision hinged on the COI then it would be more material but not in this case.

15.     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.”

Application for extension of time to appeal the JR Decision

11.As mentioned earlier, the applicant was late in filing a notice of appeal from the JR Decision.  He filed a summons in the Court of First Instance on 11 May 2020 for extension of time to appeal.  That was dismissed by the Judge on 24 July 2020.  Hence, the summons to this court.

Discussion

12.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).  As for (1), the applicant was late by more than 2 years between the JR Decision and the summons filed in the Court of First Instance.  His delay was significant. 

13.As for (2), the reasons for the delay, the applicant alleged in his supporting affirmation that he did not receive the JR Decision as he was detained in prison at the material time.  He did not give details of the dates when he was detained.  In any event, he should have kept the court informed of his updated address so that court documents can reach him in a timely manner.   

14.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant’s grounds of review were duly considered by Deputy Judge Woodcock.  In his application for extension of time before Deputy Judge Lung, he did not raise any proper ground of appeal against the JR Decision save for a general and un- particularized ground saying the JR Decision was unfair and unreasonable. Deputy Judge Lung found no realistic prospect of success in the intended appeal and refused leave. 

15.In his summons, supporting affirmation and written submissions for extension of time before this Court, the applicant also failed to provide any ground to reverse the JR Decision. 

16.It is clear from the Board’s decision that the applicant failed to convince the Board that he faced a real risk of harm upon his return to Bangladesh.  It was perfectly open to the Board to make its findings and conclusions and this Court would only intervene if there were valid public law grounds.  We do not see any in this case.  We are also satisfied that Deputy Judge Woodcock had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

17.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 9 September 2020.

The applicant, unrepresented, acting in person.