RE SHAHADAT MOLLAH

CAMP 111/2021

[2021] HKCA 1379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 111 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1546/2018)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 16 July 2020 refusing 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 (“Board”) dated 13 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 16 November 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 8 April 2006 illegally and was arrested by the police on 5 February 2007.  He made a torture claim which was rejected by the Director and his petition against the Director’s decision was dismissed.  He lodged a non-refoulement claim on 19 March 2014. 

3.  The applicant’s claim was based on threats from his paternal uncle arising out of a land dispute.  According to the applicant, his uncle was politically well-connected.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 16 November 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2] and the persecution risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 16 January 2018, the Board dismissed the appeal on 13 July 2018 (“Board’s Decision”).  At [62] of the Board’s Decision, the Board found that the applicant’s case was not credible. 

The judge’s decision

6.  The applicant filed a Form 86 on 3 August 2018 and an accompanying affirmation seeking to judicially review the Board’s Decision which contained the following grounds for judicial review, as summarized by the judge at [11] of CALL-1 Form:

(1)  procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  procedural unfairness in that the Board acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  that the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated which led to its groundless speculations that it would be safe for him to return to his country of origin; and

(6)  procedural unfairness in that the hearing bundle was given to the Applicant just six days before his appeal hearing with the majority of documents in English without translation thus giving him insufficient time to prepare for the appeal hearing and unable to find the right interpreter to assist him in his appeal.

7.  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 give 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. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or that the adjudicator act in a procedurally unfair manner, or what source of news relied on by the Board was unofficially recognized or was hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

14. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

15. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his SCF, records of his screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his SCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

16. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 42–72 of its decision with the benefit of hearing his oral evidence and answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17. Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their 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 I accordingly refuse his leave application.”

Application for extension of time to appeal and grounds for appeal

8.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 25 September 2020, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 11 March 2021.

9.  By a summons filed on 12 April 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“The High refused to extension of time to apply against his judgment, I could not appeal as I did not get any letter from the court.”

10.  In the affirmation filed on 12 April 2021, the applicant deposed that:

“... I did not get any letter about decision of the High Court.”

11.  In his skeleton submissions lodged on 15 June 2021, the applicant gave a summary of the events giving rise to his claim.  He submitted that “I request to the Honourable judges to grant my leave.  If you refuse may be I will return to Bangladesh and my uncle will kill me”.

Discussion

12.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

13.  The applicant claimed that he did not receive any letter enclosing the judge’s decision but he did not give any particulars.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

14.  The only ground of appeal advanced by the applicant is that it is unsafe for him to return.  He did not identify any error on the part of the judge and he has therefore failed to advance any viable ground of appeal.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker.  On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.

15.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 12 April 2021 is dismissed accordingly.