RE SHAHAJUL MOLLAH

CAMP 341/2022

[2023] HKCA 435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 341 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1747/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”)  dated 1 June 2022 refusing to extend time for the applicant to appeal against his decision dated 16 September 2019 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 13 August 2018 (“the Board’s Decision”)  dismissing the appeal against the decisions of the Director of Immigration (“the Director”)  dated 27 January 2016 and 20 June 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decisions”).

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 18 March 2009, and was arrested by the police on 1 April 2009.  On 4 April 2009, he raised a torture claim, which was later treated as a non-refoulement claim under the Unified Screening Mechanism.

3.  The applicant’s claim was based on a fear of being harmed or killed by members of the Awami League.  The details of the applicant’s claim have been summarised by the Judge at [2] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision and a Notice of Further Decision respectively dated 27 January 2016 and 20 June 2017, the Director decided against the applicant’s claim.  The Director’s Decisions covered the torture risk[2], persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 14 June 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board cast doubt on the applicant’s credibility and did not accept that he had been adversely targeted by Awami League members or the government of Bangladesh.  In any event the Board considered that state protection and suitable options of internal relocation were available to the applicant.

The Judge’s decision

6.  The applicant filed a Form 86 on 27 August 2018 seeking to judicially review the Board’s Decision.

7.  In his supporting affirmation, the applicant set out his grounds of review, which have been set out by the Judge in [11] of the CALL-1 Form.  In gist, his complaints were that the adjudicator of the Board was unfair and had not given greater care to a self-represented claimant such as the applicant, relied on unreliable information in reaching the Decision, failed to consider relevant factors and that the applicant was prejudiced by the lack of legal representation before the Board.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [19] of the CALL-1 Form:

“12.  The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer explained to him. He understood the Board’s Decision as his friend explained it to him. I explained the Board’s findings above to him and asked if he had any comments. He did not have any comment.

13.  It is quite obvious that the Board did not accept the facts in support of his claim, though it had accepted part of his story. Therefore, the applicant had no factual basis for his claim. The Board is the final finder of facts. Nupur Mst v. Director of Immigration [2018] HKCA 524, para.14. Those grounds above are quite irrelevant. Nevertheless, I shall deal with them.

14.  Grounds (1), (2), (3)  and (15)  fail as they are inconsistent with what the applicant said before this Court.

15.  Grounds (4)  to (14)  are his opinion without any particulars of evidence in support of them.

16.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said:

‘This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.’

Ground (17)  fails.

17.  Ground (16)  fails because this was raised in the Board’s hearing.

18.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

19.  Since the applicant’s application to apply for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.”

The present application for extension of time to appeal

9.  The applicant’s last known address in his Form 86 was at Kwu Tung, Sheung Shui North (“the Sheung Shui Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Sheung Shui Address on 16 September 2019, and were not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 16 September 2019.

11.  The applicant thereafter took out a summons in the Court of First Instance on 21 April 2022 seeking extension of time to appeal, in which his address was stated to be at Castle Peak Bay Immigration Centre.  In his supporting affirmation filed on the same date, he deposed that he did not receive any correspondence from the court regarding the Judge’s dismissal of his application for leave.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 1 June 2022[6].

13.  By a summons filed on 9 September 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant stated that he wished to appeal against the decision given by the Judge on “1 June 2022”, being the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 16 September 2019.  Although in his summons the applicant purported to seek leave to appeal out of time against the decision of the Judge dated 1 June 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 16 September 2019, by which leave for judicial review was refused. 

14.  In his supporting affirmation, the applicant stated that he had only learned of the Judge’s decision from an immigration officer. The decision was reached unfairly.

15.  In his written submissions lodged on 21 September 2022, the applicant referred to the well-established principles in, inter alia, ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

17.  As noted above, the Judge’s Decision was sent to the last known address of the applicant at the time (i.e. the Sheung Shui Address)  and was not returned undelivered. The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

18.  Even if the Sheung Shui Address was no longer the applicant’s address by the time the Judge’s Decision was sent to him, it was incumbent upon the applicant to notify this court of any change of address in good time and without delay.  He has not only failed to do so, he has also failed to explain in his applications for extension of time (before the Judge and now before this court)  what were the dates he was detained at Castle Peak Bay Immigration Centre, and when he had eventually come to learn of the Judge’s decision.  The applicant must bear the consequences of such failures.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.

19.  We have however nonetheless proceeded to consider the merits of the intended appeal.

20.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.  We are unpersuaded by the applicant’s complaint of a lack of legal representation at the Board level, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

23.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

24.  Further, there was no attempt by the applicant to elaborate on whether and, if so how, the trite principles referred to in his written submissions had not been applied in the processing of his non-refoulement claim.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 9 September 2022 is accordingly dismissed.