RE MD NEKBAR alias MD NAKBAR

CAMP 286/2021

[2022] HKCA 98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 286 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2820 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 22 May 2020[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 3 December 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 12 October 2017 rejecting the applicant’s non-refoulement claim.

2.  On 2 July 2021, the Judge refused to extend time for the applicant to appeal against his decision of 22 May 2020.[2]

Background

3.  The applicant is a Bangladeshi national. He was arrested by police in Hong Kong on 22 July 2009, the day on which according to the applicant he arrived in Hong Kong, on suspicion of being an illegal immigrant. He lodged his non-refoulement claim on 26 July 2009.

4.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by members of the Awami League, due to his failure to yield to their extortion demands and his support for the Bangladesh Nationalist Party. The factual background was set out at paragraphs 9 to 14 of the Board’s decision.

5.  Having assessed the applicant’s claim on all applicable grounds, by notice of decision dated 12 October 2017 the Director determined it against him. The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6]

6.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 6 September 2018, during which the applicant answered questions from the Board with the assistance of a Bengali language interpreter. The Board was not satisfied that his evidence was truthful or reliable, due to multiple and significant inconsistencies and anomalies both within his oral evidence at the hearing and when compared with the information in his non-refoulement claim form. At paragraphs 31 to 49 of its decision, the Board noted that it had put those inconsistencies and anomalies to the applicant at the hearing, but the applicant was unable to explain satisfactorily the inconsistencies and anomalies.

7.  While the Board accepted that the applicant might prefer the BNP over the Awami League, it did not accept that he or any member of his family had any actual involvement with or profile linked to the BNP. The Board did not accept the applicant had had false charges made against him as alleged or that he was targeted for extortion. In the end the Board did not accept that the applicant faced harm of any kind in Bangladesh for any reason. As there was no real risk of harm in the event of refoulement, the Board dismissed the applicant’s appeal on 3 December 2018 in respect of all applicable grounds.

The Judge’s decisions in the court below

8.  On 10 December 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his Form 86, he raised a number of grounds for judicial review, which we summarize below:

(1) Procedural unfairness by the Board due to its failure to carry out sufficient, up-to-date and relevant research and inquiry into country of origin conditions, its failure to call for psychological and psychiatric evaluations and reports, its application of an incorrect standard of proof, failures by the duty lawyer resulting in lack of or insufficient legal assistance in the Board proceedings, and lack of language assistance.

(2) The Board’s decision was irrational due to its failure to consider relevant COI (country of origin information), its cherry-picking of COI that was outdated or of little or no relevance, its failure to assess whether state protection exists or whether there is a consistent pattern of gross, flagrant or mass human rights violations in Bangladesh, and its taking into account irrelevant considerations (though the allegedly irrelevant considerations were not identified).

(3) Misdirection in the law, in that the Board considered that it was a requirement to have experienced torture in the past in order to establish torture risk.

9.  In addition, in his supporting affirmation the applicant raised the following grounds as summarized by the Judge at [11] of the Form CALL-1:

“ 11. … in support of his application, the applicant relied upon the grounds below:

1. He was not legally represented in his appeal and there was no legal advice.

2. The hearing bundle was only given to him shortly before the appeal hearing and he did not have sufficient time to prepare for the hearing.

3. The hearing bundle is in English and he was unable to get cheap interpreter to understand it.

4. The Board relied upon news not officially recognized, outdated or hearsay materials. The finding that he would be safe if he returned to Bangladesh is only speculation.

5. There was no screening by the immigration officer for BOR 2 risk.”

10.  Following a hearing on 1 August 2019 at which the applicant appeared before the Judge, on 22 May 2020 the Judge refused to grant leave to apply for judicial review, the reasons for which were set out at [12] – [22] of the Form CALL-1 as follows:

“ 12. The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. He can read English, so he understood the Director’s Decision and the Board’s Decision.

13. I put the Board’s findings to him and ask him for his comments. He said that he had no comments.

14. It is obvious that the Board rejected all the significant facts in support of his claim. As such, he has no factual basis for his application.

15. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that the finding of facts are within the province of the Director and the Adjudicator, whose findings will be final, subject to judicial review. There is no evidence to show the Board committed any error in coming to its decision.

16. The Court of Appeal in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings.

17. The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 held that high standard of fairness would not require provision of interpretation for the applicant.

18. In fact, the applicant confirmed that he could read English himself.

19. Grounds (1) to (3) fail.

20. Ground (4) is his opinion without any evidence in support of it.

21. Ground (5) is inconsistent with the fact that BOR 2 risk was considered together with other risks in the screening before the immigration officer.

CONCLUSION

22. For the reasons above, l consider that the applicant is unable to show that he has any reasonable prospect in his intended judicial review. I refuse to grant him leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

11.  On 8 June 2020, the applicant took out a summons to seek an extension of time to appeal against the decision of the Judge. In his supporting affirmation, the applicant explained that his application was late because he received the letter late.

12.  The Judge determined the application on paper without an oral hearing. In his decision dated 2 July 2021, the Judge stated that the applicant was unable to show that he had any reasonable prospect of success in the intended appeal, and thus dismissed the application.

The renewed application before this Court

13.  On 27 July 2021, the applicant took out a summons seeking an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review. In the summons and the accompanying affirmation, the applicant simply stated that the court below had dismissed his application for leave to apply for judicial review and refused to extend time, that he wanted to appeal, and that he requested an extension of time to appeal.

14.  The applicant lodged his submissions on 10 August 2021, in which he briefly referred to the basis for his non-refoulement claim, stating the current ruling party in Bangladesh and their leader wanted to kill him. He recounted the procedural history of his claim, stating that he did not receive the judgment of the court below, and asked to be given a chance to appeal.

Discussion

15.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

16.  The applicant’s application to the Judge for extension of time to appeal was late by 3 days. As the delay was short and the applicant was not legally represented, we have proceeded to decide the present application on the basis of the merits of the intended appeal.

17.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

18.  In the present case, the Board rejected the applicant’s non-refoulement claim due to its adverse finding on the applicant’s credibility and reliability. As such, the Board found that there was no real risk of harm in the event of refoulement. These findings are within the province of the Board, and the court will not interfere with such assessments unless they are vitiated on public law grounds.

19.  The applicant’s submissions for his present application failed to show how the Judge has erred in refusing leave for judicial review, in light of the Board’s adverse finding on the applicant’s credibility and reliability which he has not specifically challenged. The applicant’s intended grounds for judicial review, which appeared template-based, failed to engage with the Board’s reasoning and the bases of its decision. As the judge recorded in his two decisions, he had put the Board’s findings to the applicant at the hearing and asked for his comments, but the applicant said he had no comments. Further, the applicant confirmed to the Judge that he had no complaint against the immigration officer or the Board.

20.  As there are no grounds of appeal advanced that point to any error in the Judge’s decision, the appeal should be dismissed. Having considered the materials before us, we are of the view that the Judge’s observations are justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

21.  We do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The summons dated 27 July 2021 is accordingly dismissed.