Re Sumon Mohammad

CAMP 156/2023, [2023] HKCA 1152

On Appeal From [2022] HKCFI 2908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 156 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1062 OF 2019)

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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 7 November 2022, DHCJ K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning the applicant’s non-refoulement claim ([2022] HKCFI 2908, “the JR Decision”). Under Order 53 r.3(4) of the 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 with the Court of First Instance on 3 March 2023 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 13 April 2023 ([2023] HKCFI 843).

3.On 17 April 2023, the applicant filed a summons in CAMP 156/2023 (“the Summons”) applying to this court for an extension of time to appeal against the JR Decision.

4.In compliance with the directions made by the Registrar of Civil Appeals on 17 April 2023, the applicant lodged his written submissions in support of the Summons on 2 May 2023.

5.On 9 August 2023, the applicant filed a Request for Dismissal of Appeal requesting the dismissal of “the appeal filed on 17 April 2023”. The date is obviously a reference to the Summons filed on 17 April 2023 for an extension of time to appeal against the JR Decision and we will treat it as a request to withdraw the Summons. Nevertheless, the practice of this court is to consider and if appropriate dismiss the application for extension of time to appeal, instead of merely granting leave to withdraw: see Rini Artini [2020] HKCA 709 at [9].

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 entered Hong Kong illegally on 12 December 2015 and was arrested by the police on 13 December 2015. He raised a non-refoulement claim on 19 December 2015 alleging that if refouled, he would be harmed or even killed by members of the Awami League because of his participation in a campaign of the Bangladesh Nationalist Party. The factual background of this case was succinctly summarised by the Judge at [3] and [4] of the JR Decision ([2022] HKCFI 2908).

8.By a Notice of Decision dated 10 May 2018, the Director of Immigration (“the Director”) rejected 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].

9.On 28 May 2018, the applicant filed his Notice of Appeal with the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) against the Director’s decision. The applicant attended a hearing on 15 January 2019. Although the applicant claimed to be a very active member and that he was attacked at a protest by blocking the road, the Board found that the applicant’s claim is not credible as the applicant did not have knowledge of the political situation (eg when general elections took place [60], or his party’s political alliances [69]) and when questioned, claimed not to be able to recall anything of the relevant events [70]. Therefore, the Board dismissed the applicant’s non-refoulement claim on all applicable grounds on 28 March 2019.

Application for leave to apply for judicial review

10.On 18 April 2019, the Applicant filed a Form 86 with the Court of First Instance for leave to apply for judicial review of the Board’s decision. He advanced the following grounds in his Form 86 and supporting affirmation:

(1)  The hearing bundle was given to him shortly before the hearing. The contents of the bundle are in English and he did not have interpretation assistance.

(2)  Because of the shortage of time for his preparation for the hearing, he was confused at the hearing.

(3)  He had honestly answered all the questions but his credibility was found questionable by the Board.

(4)  The Board did not notify him of its decision by phone although it was expressly requested to do so.

(5)  The Board relied on the source of news which is not officially recognized or is simply hearsay. It also relied upon outdated cases.

(6)  There was no screening for BOR 2 risk.

(7)  The Board’s decision is wrong without proper inquiry and careful understanding of the situation by visiting the applicant’s home country.

(8)  The Board had unlawfully fettered its discretion by refusing the appeal.

(9)  The adjudicator had acted in a procedurally unfair manner in dealing with the appeal.

(10)  The Board’s decision is unreasonable and irrational.

(11)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

The JR Decision

11.The applicant requested an oral hearing but was absent at the hearing scheduled on 19 October 2022. The Judge then proceeded to deal with the application on paper. After due consideration of the Board’s decision and the grounds of the applicant’s intended challenge, the Judge refused to grant leave to apply for judicial review for reasons set out in [15] - [17] of the JR Decision:

“15…. grounds (1) to (3) are in relation to the shortage of time the hearing bundle was given to him. However, there was no application from him to the Board for an adjournment of the hearing. He said he had answered all the questions the Board raised with him. This means that he was not confused at the hearing. Ground (4) is a non-point. The law does not require the Board to notify him its decision by phone. Ground (5) is his bare assertion or his opinions without any evidence in support. Ground (6) does not assist him because the law does not require another screening process as there had been one before; and finally ground (7) is not a valid reason for his complaint. The Board can rely on the country of origin information and does not have to go to his country to understand the situation there. Grounds (8) to (11) are his personal opinion without any evidence in support. All grounds fail.

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. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Application for extension of time to appeal against the JR Decision

12.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 3 March 2023 for an extension of time to appeal, which was dismissed by the Judge on 13 April 2023. Hence, the Summons to this court.

Discussion

13.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).

14.As for (1) and (2), the applicant delayed for more than 3 months when he filed the summons at the Court of First Instance for extension of time to appeal. The delay is substantial. He explained that he did not receive the decision from the court. In fact, the court sent the decision by post to the applicant’s address as stated in his Form 86 on the date of handing down on 7 November 2022. The document was not returned to the court by the post office. It is noted that the applicant later stated a new address in his summons for extension of time to appeal filed on 3 March 2023 without any prior 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. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]). In the present case, the applicant had not filed any notice of change of address for service with the court. Under these circumstances, there is no satisfactory explanation for his substantial delay.

15.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. Where the applicant’s delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

16.The applicant stated the following grounds in his written submissions:

(1)  The Judge was wrong as a matter of law in not having applied the principle of irrationality to the decision made by the Director and the Board.

(2)  High standards of fairness are required in determination of a torture claim on the part of the decision maker. But the Judge reviewed the matter lightly.

(3)  The decision has the effect of finally disposing of the applicant’s torture claim and making him liable to be removed. This has real and significant implications for his substantive right not to be subject to torture and his right to non-refoulement protection.

(4)  The Judge was wrong as a matter of law in not having applied the principle of procedural unfairness to the decision of the Director, whereby the Director and the Adjudicator were required to give reasons justifying their decisions.

(5)  Despite his severe problems in his country and his submissions of all the proof for his claim, the Judge did not give greater care to his case and disappointed him.

(6)  The Judge did not analyze his case properly.

(7)  The Judge’s decision was unreasonable.

(8)  The Judge might not appreciate the reasons why the Director and the Board rejected his claim.

(9)  The Adjudicator had failed to give sufficient chance to him to arrange relevant evidence for his non-refoulement claim and appeal.

(10)  His life and limb are in jeopardy and his fundamental human right not to be subject to torture is involved, which required high standards of fairness.

(11)  He will face hardship if he were to return to his home country and the Board had significantly relied on the source of news which is not officially recognized, or is simply hearsay.

(12)  The Adjudicator failed to evaluate and make finding of fact as to whether there are a consistent pattern of gross and mass violation of human rights and state protection in Bangladesh, misdirecting himself as to the extended meaning of state protection.

17.In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.It is clear from the JR Decision that the Judge had duly considered the decisions of the Board, as well as the applicant’s grounds of his intended challenge. The Judge has sufficiently explained the reasons for rejecting the leave application. The applicant’s complaints against the Judge in respect of the JR Decision are just bare assertions without sufficient particulars or evidence in support.

19.We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and duly considered the applicant’s grounds. We agree with the Judge that there is no prospect of success in the applicant’s intended application for judicial review and the leave application should be refused.

20.As the intended appeal is unarguable even if he had not withdrawn his application, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 17 April 2023.

The applicant, unrepresented, acting in person