RE MOHAMMED SHAMIUL HAQUE

CAMP 185/2019

[2021] HKCA 743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 185 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 586 OF 2018)

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J U D G M E N T

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The Court:

1.  This is the applicant’s application for leave to appeal against the decision of Deputy High Court Judge Bruno Chan given on 17 May 2019 refusing to grant an extension of time for his application for leave 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 (“Board”) dated 7 April 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 4 March 2016 and 10 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India. He entered Hong Kong on 7 January 2014 as a visitor and was permitted to remain until 21 January 2014.  He overstayed and was arrested by the police on 7 February 2014.  He lodged a non-refoulement claim on 9 February 2014.

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 4 March 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 10 February 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 8 March 2017, the Board dismissed the appeal on 7 April 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [66] of the Board’s Decision, the Board found that the applicant’s case was not credible.

The Judge’s decision

7.  The applicant filed a Form 86 on 9 April 2018 which contained the following grounds for judicial review:

(1) The Director’s Decision and the Board’s Decision were unreasonable and unfair;

(2) The Board failed to give the applicant sufficient time and chance to arrange relevant evidence; and

(3) The applicant faces dangerous problems and torture upon his return.  The applicant relies on the right to life under Article 28 of the Basic Law and Article 2 of the Bill of Rights.

8.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form:

“13. In considering whether to extend time the Court shall have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & anor CACV 63/2015.

14. In the applicant’s case, as held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and that the Director’s decision has been superseded by the Board’s decision, and it is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.

15. As for the Board’s decision, as it was made on 7 April 2017, the last date for the applicant to make his application fell on 7 July 2017 under the said rule, and hence when he filed his Form 86 on 9 April 2018, he was more than nine months late which must be regarded as a very substantial delay, for which he did not provide any explanation in his affirmation, nor did he do so at the scheduled hearing of his application now before me when he failed to appear without giving any reason.

16. As for his proposed grounds for his intended challenge, they are just some broad and vague assertions of the applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to his case, or how did the adjudicator fail to give him sufficient time or opportunity to produce his evidence for his claim or appeal. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and as such I do not find any basis or merits in any of them.

17. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

18. In the present case the Board rejected the applicant’s claim based on its adverse finding on his credibility for the careful and detailed analysis and reasoning set out in paragraphs 47 – 71 of its decision, and with rigorous examination and anxious scrutiny I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the applicant’s claim.

19. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason to do so I refuse to extend time for his late application, and I accordingly dismiss his leave application.”

Application for leave to appeal and grounds for appeal

9.  By a summons dated 31 May 2019, the applicant sought leave to appeal.  His application was dismissed by DHCJ Bruno Chan on 24 July 2019.

10.  By a summons filed on 6 August 2019, the applicant renewed his application before this court.  In the summons he stated that:

“Leave be granted to appeal against the decision of Judge Bruno Chan…”

11.  In the affirmation filed on the same date, the applicant deposed that:

“I would like to appeal out of time as I didn’t had the appropriate means nor I received the decision on time.”

12.  In his written submissions dated 22 August 2019, the applicant submitted that:

(1) The Board acted in a procedurally unfair manner in assessing the applicant’s credibility; and

(2) The Board failed to meet the high standard of fairness

Discussion

13.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

14.  As is apparent from the CALL-1 Form, while noting that the delay was substantial and did not appear to him to be excusable, the judge refused to grant an extension of time for leave for judicial review because of the lack of merit in the proposed judicial review.  Although the refusal to extend time to bring judicial review proceedings is a final decision, so that leave to appeal was not required, the intended appeal was well out of time and leave would thus have to be obtained.  Although we do not consider that the delay has been properly explained we shall consider the merits of the proposed appeal.

15.  The only grounds of appeal set out in the written submissions complain of errors on the part of the Board, but do not identify any error on the part of the judge. They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

16.  We therefore do not see any prospect of success in the intended appeal.  We will not grant an extension of time for a hopeless appeal.  The summons filed on 6 August 2019 is dismissed accordingly.

17.  We are also of the view that the application is totally without merit.  Pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.