Re Mir Shajjat

CAMP 109/2022, [2023] HKCA 875

On Appeal From [2021] HKCFI 3446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 109 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2703 OF 2018)

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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 22 November 2021, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”) [2021] HKCFI 3446. 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 10 February 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 10 March 2022 [2022] HKCFI 629. 

3.On 14 April 2022, the applicant filed a summons in CAMP 109/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal against the JR Decision.

4.Pursuant to the directions made by the Registrar of Civil Appeals on 14 April 2022, the applicant should lodge his written submissions in support of the Summons on or before 28 April 2022.  However, he failed to do so.  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.

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 entered Hong Kong illegally on 24 January 2016 and was arrested by police on 2 February 2016.  On 6 February 2016, he raised his non-refoulement claim alleging that if refouled, he would be harmed or even killed by Chand and persons of the Awami League (“AL”) because he was a member of the Bangladesh Nationalist Party (“BNP”).  He claimed that he would also be harmed or killed by his creditors who belonged to AL due to his default in repayment of his loan.  He claimed to have been assaulted but was not consistent in the number of assaults.  The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2021] HKCFI 3446).

7.By a Notice of Decision dated 11 October 2017, the Director of Immigration (“the Director”) had decided against the applicant’s claim.  The Director’s decision 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”).  An oral hearing was held on 5 September 2018, during which the applicant gave evidence before the Board.  His appeal was dismissed on 14 November 2018.  For reasons set out at [37] – [51], the Board found that the applicant’s evidence was speculative and unsupported by evidence, and thus the Board did not believe the central aspects of the applicant’s claim.  The Board rejected the applicant’s allegations that he had contributed to BNP campaigns or supported any individuals of the BNP, which underpinned his claimed enmity with Chand and the claimed creditors linked to the AL.  It also rejected the applicant’s allegation that he was targeted for harm by Chand, as well as his allegation that his fish farm was deliberately poisoned so as to leave him unable to repay his debts.  In all, the Board was not satisfied that the applicant would face a real chance of harm if refouled and his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.On 29 November 2018, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision. The applicant did not advance any grounds for relief save for saying that what he had submitted before the Director and the Board were true.

The JR Decision

10.The applicant did not request an oral hearing and the Judge disposed of his application on the papers.  After due consideration of the decision of the Board, the Judge refused to grant leave to the applicant to apply for judicial review of the Board’s decision with reasons set out in [12] - [17] of the JR Decision:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13 (1).… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15. His grounds in support of this application do not assist his application. The Board was entitled to cross-examine his evidence and come to its conclusion as it did in this case. The Board had rejected his evidence on the facts. He has no factual basis in support of his claim.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.”

Application for extension of time to appeal the JR Decision

11.As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 10 February 2022 for an extension of time to appeal.  That was dismissed by the Judge on 10 March 2022.  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). 

13.As for (1), the applicant was late by more than 2 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 substantial.  

14.As for (2), the reasons for the delay, the applicant claimed that he did not receive the JR Decision and he explained in the summons taken out in this Court that he had changed his address.  He had only updated his new address with the Immigration Department and he had mistakenly believed that “any department updated the address is ok”.  The applicant should of course have kept the court informed if he changes his address to ensure that the court letter can reach him in a timely manner.  We do not see any good reason for his delay.

15.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant failed to advance any valid ground to challenge the Board’s decision nor could he pinpoint any error in the JR Decision.

16.It is clear from the Board’s decision that the Board rejected the applicant’s case on the facts and in its entirety as his evidence was evasive, inconsistent and lacking in details.  It did not believe that the applicant would face any risk of harm or torture upon his return to his home country.  It is perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  The judge was right to find none.    

17.We are 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.

18.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 14 April 2022.