Re Almas

CAMP 299/2021

[2022] HKCA 987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 299 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1749 OF 2018)

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Before:  Hon Yuen and Chu JJA in Court

Date of Judgment:  12 July 2022

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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 13 January 2021, DHCJ P. Li (“the Judge”)  refused to grant an extension of time for the applicant’s application for leave to apply for judicial review concerning his non-refoulement claim and dismissed his leave application (“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 25 February 2021 for extension of time to appeal.  That summons was dismissed by the Judge on 21 July 2021.

3.On 29 July 2021, the applicant filed his summons in CAMP 299/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.Pursuant to the directions of Registrar of Civil Appeals of 29 July 2021, the applicant should lodge his written submissions on or before 12 August 2021.  However, he failed to do so.

5.The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

6.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

7.The applicant is a national of Bangladesh. He came to Hong Kong on 17 July 2006 as a visitor and was permitted to stay until 31 July 2006.  He overstayed and was arrested by police on 16 March 2008. He lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 5 April 2008 alleging that if refouled, he might be harmed or even killed by members of the Awami League (“AL”)  as he was a member of the opposition party, Bangladesh Nationalist Party (“BNP”).  His claim was treated as a non-refoulement claim upon the commencement of the unified screening mechanism on 3 March 2014.  The factual background of this case was succinctly summarised by the Judge at [8] – [26] of the JR Decision ([2021] HKCFI 76).

8.By a Notice of Decision dated 7 July 2015, the Director of Immigration (“the Director”)  decided against the applicant’s claim.  The Director’s decision covered the BOR 3 risk[1], the torture risk[2] and the persecution risk[3].

9.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 April 2016.  By its decision dated 15 March 2017, the Board dismissed the appeal and confirmed the Director’s decision (“the Board’s 1^st Decision”). For the reasons set out in [46] to [72], the Board found that the applicant’s account was implausible and incredible.  First, the alleged incidents of attack which took place between April 2005 to February 2006 was inconsistent with the applicant’s saying the attack happened near the end of the parliamentary term of the BNP government and the installation of a caretaker government at the end of 2006.  Further, the applicant did not suffer any serious injury during the alleged assaults.  Second, his confused and contradictory evidence about why he came to Hong Kong and his substantial delay in lodging his non-refoulement claim further undermined his credibility.  The applicant’s claim that his political enemies were still looking for him was his own speculation, and the Board formed the view that given the applicant was not a prominent member of the BNP, the AL members would no longer have any adverse interest in him after all these years.  Lastly, there was no reliable evidence to suggest any state involvement or any official instigation or acquiescence, and the Board found no real risk of harm upon his return to Bangladesh. For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

10.On 5 April 2017, the Director invited the applicant to file further evidence in relation to the BOR 2 risk[4] and there was no response.  By the Notice of Further Decision of 21 April 2017, the Director rejected the applicant’s claim under BOR 2.  The applicant filed a notice of appeal out of time on 8 June 2017, claiming that he only received the Director’s decision on 5 June 2017.  By the Board’s decision made on 27 October 2017 (“the Board’s 2^nd Decision”), it was considered that the applicant has failed to show any good ground for allowing a late filing of the petition and in any event, his claim on BOR 2 risk would be not be made out on the same grounds as set out in the Board’s 1^st Decision.

Application for leave to start judicial review

11.On 27 August 2018 (1 year and 5 months after the Board’s 1^st Decision), the applicant filed a Form 86 to apply for leave to judicially review the Board’s 1^st Decision only. Pursuant to Order 53, rule 4(1)  of the Rules of the High Court (Cap.4A), an application for leave to apply for judicial review should be made promptly and in any event within 3 months from the date when the grounds for application first arose.

12.In his supporting affirmation, he raised three major grounds:

(1)  Irrationality – the Adjudicator failed to consider relevant Country of origin information (“COI”)  and the COI was outdated.

(2)  Procedural impropriety/unfairness – the Adjudicator failed to obtain further COI in relation to human rights situation in Bangladesh.

(3)  Procedural impropriety/unfairness – there was a lack of legal representation and language assistance.  There was no psychologist or psychiatric report called for consideration by the Adjudicator.

The JR Decision

13.The applicant failed to attend the oral hearing fixed for 24 November 2020 and thus the application was disposed of on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused to grant an extension of time and dismissed the leave application for reasons set out in [44] - [51] of the JR Decision:

“44.  In the Form 86, the applicant raised three major grounds as follows:

a.  Irrationality [5]

i.  He complained that the adjudicator failed to consider relevant COI. The COI were outdated.

ii.  In his decision dated 15/3/2017, the adjudicator specifically mentioned that he had considered the COI listed in the appendix of the Director’s decision. Some of the COI were from the US State Department, US Central Intelligence Agency, UK Home Office, The Asian Human Rights Commission and Odhikar Human Rights Report. They were from authentic sources. The Director visited those websites in June 2015.

iii.  There were News websites including Bangladesh news and Dhaka Tribute. It was difficult to assess the reliability of these news agencies. However, they were only used to corroborate the authoritative findings of those in (ii).

iv.  Although the most updated COI were not referred to, there is no evidence that the situation in Bangladesh has deteriorated since 2015. The applicant, who bore the burden of proving his claim, could only made general criticism in this respect. Had there been any relevant information, the applicant should have sufficient time to raise it during the hearing with the TCAB in April 2016.

v.  It is ironic that the applicant pointed out in another part of the Form 86 that the adjudicator should considered USHR 2010 and USRF 2010 which were outdated.[6]

vi.  In any event, the adjudicator found that the applicant was unreliable. There was no basis that he was targeted by AL supporters. It was not probable that the applicant came to Hong Kong to seek safety. State protection was not an important factor.

vii.  In my judgment, it is reasonable for the adjudicator to rely on the information in the appendix. There is no substance in this ground.

b.  Procedural impropriety/unfairness [7]

i.  The applicant complained that the adjudicator failed to obtain further COI in relation to the human rights situation in Bangladesh. He suggested three websites which should have been considered in assessing State protection.

ii.  As mentioned by the Court of Appeal, the assessment of a claim should be one of joint endeavour. It would not be appropriate for either party to sit back and let the other party prove or disprove the claim. The applicant was assisted by the DLS, he should have filed relevant information with the Director and TCAB.

iii.  The applicant pointed out 3 websites in 2010 and 2011. They are even more outdated than those considered by the adjudicator which were last accessed in 2015. In any event, the relevant time is the time of assessment by the TCAB.

iv.  A fair reading of the decision of the TCAB shows that the adjudicator had considered the COI carefully before coming to the conclusion that there was State protection.

c.  Procedural impropriety/unfairness [8]

i.  The applicant complained that he was not legally represented in the TCAB. He only had a few days to prepare. The appeal bundle was in English. The applicant pointed out that he could not understand the written skeleton argument of the Director in the hearing bundle. No psychologist or psychiatric report was considered by the adjudicator.

ii.  The bundle consisted of the NCF and records of the screening interview. The applicant was assisted by the DLS in preparing the NCF and in the interview. He must be familiar with the contents. The decision of the Director was sent to the DLS. It must have been translated to him. The short notice, even if accepted, would not give rise to unfairness. There is no duty on the part of the Director to supply translated documents.

iii.  There was no sign that the applicant was suffering from any mental illness which warranted calling expert reports. He did not raise any request.[9]

iv.  The argument of the Director set out in the skeleton must have been translated to him during the hearing at the TCAB. Had there been any difficulties, he should have sought assistance from the adjudicator during the hearing.

TCAB Appeal

45.  Although the applicant had not specifically referred to the further decision of the TCAB dated 27/10/2017, I have considered whether there is any error in refusing the late filing of the notice of appeal.

46.  In the further decision, the adjudicator pointed out that the applicant should have explained in more detail why he only received the Director’s decision on 5/6/2017. It was more than a month after the Director’s decision dated 21/4/2017.

47.  The adjudicator reiterated that there was no basis for the AL to attack or target the applicant. Given this findings, the BOR 2 ground would have been dismissed in any event.[10]

48.  In my judgment, the adjudicator was right to refuse the late filing given the circumstances. There was no error of law and procedure.

Out of Time Leave Application

49.  As mentioned above, the applicant was out of time for about 14 months.  He should have first sought an extension of time for the leave application.

50.  In considering whether there is good reason for the delay, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [11] The applicant did not apply for leave within 3 months as required under the law, he did not provide any explanation for the delay. 

51.  I agree with the decision of the TCAB.  There is no merit in the applicant’s claim given the evidence.  In my judgment, there is no error of law and procedure.  The decisions of the Director and the TCAB are reasonable.”

Application for extension of time to appeal the JR Decision

14.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 25 February 2021 for extension of time to appeal.  That was dismissed by the Judge on 21 July 2021.  Hence, the Summons to this court.

Discussion

15.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).

16.As for (1), the applicant was late by 4 weeks between the deadline to file an appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.

17.As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he only received the JR Decision on 18 February 2021 as he used his friend’s address as his correspondence address and his friend was late informing him about the JR decision.  He further claimed that he had since taken legal advice and he was told that there was a good ground of appeal which was not raised during the leave application and this should justify an extension of time for appeal, but no details were provided.  The Judge did not accept the applicant’s explanation as good reasons for his delay.[12]We agree with the Judge’s decision.

18.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 against the JR Decision and merely repeated the background of his case and asked the court to show him mercy and allow him to stay in Hong Kong.

19.In the Summons and supporting affirmation filed in this Court, the applicant still failed to provide any proposed grounds of appeal, or any particulars of any error in the JR Decision.  There were no additional grounds to explain his delay, which the Judge had rejected.

20.It is clear from the Board’s decision that the applicant’s claim was rejected for lack of credibility as his evidence was inconsistent in many significant aspects, and his delay in lodging a non-refoulement claim for about 18 months suggested that he is not a genuine asylum seeker. Further, given the lapse of time and the fact that even on his own case, the applicant was not a prominent member of the BNP, it was open to the Board to find it unlikely that AL members would target him upon his return to Bangladesh.  The Court would only intervene if there were valid public law grounds.  As with the Judge, we do not see any in this case.

21.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.

22.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 29 July 2021.

The applicant, unrepresented, acting in person