RE SHEIKH MOHAMMOD SUBUJ

CAMP 257/2022, [2023] HKCA 545

On Appeal From [2021] HKCFI 1545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 257 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1517/2018)

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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 Bruno Chan (“the Judge”) dated 31 May 2021 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 26 July 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 3 February 2016 and 6 January 2017 rejecting his non‑refoulement claim (“the Director’s Decisions”).

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 28 June 2013 and was arrested by the police on 6 November 2013.  On 11 November 2013, he lodged a non-refoulement claim.

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 [1] to [5] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision and a Notice of Further Decision respectively dated 3 February 2016 and 6 January 2017, the Director decided against the applicant’s claim.  The Director’s Decisions covered the torture risk[2], the persecution risk[3], the BOR2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 20 February 2017, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found that the applicant’s claim of being targeted by members of the Awami League was unsupported by evidence, and in any event state protection was available to him.

The Judge’s decision

6.  The applicant filed a Form 86 on 1 August 2018 seeking to judicially review the Board’s Decision, stating that the decision to refuse his torture claim was unreasonable as it was not carefully considered.

7.  In his supporting affirmation, the applicant stated that “the decision of the Director of Immigration was unreasonable in that he failed to consider all the matters raised in … [his] claim and/or give adequate reasons”.

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 [11] to [16] of the CALL‑1 Form:

“11.  On 1 August 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that the decision was unreasonable in failing to consider all the matters raised in the claim but without any details or particulars or elaboration as to how it was so, nor did he put forward any other proper ground for his intended challenge or request any oral hearing for his application.

12.  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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its finding of no evidence of any real and foreseeable risk of harm from anyone in Bangladesh for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 63 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or irrationality 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.  

14.  Furthermore, the fact is 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 parts 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.

15.  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.

16.  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.”

The present application for extension of time to appeal

9.  The applicant’s last known address at the time of the Judge’s decision was at 70 Tai Nan Street, Mong Kok (“the Mong Kok 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 Mong Kok Address on 31 May 2021, 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 31 May 2021.

11.  The applicant thereafter took out a summons in the Court of First Instance on 22 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 claimed that he had been detained at a correctional institution and only learned about the Judge’s decision from his “case officer”.  He also claimed that because he was unrepresented, he was unaware of the rules on the time limits for lodging his appeal.

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

13.  By a summons filed on 18 July 2022, the applicant renewed his application for an extension of time to appeal before this court.  In his supporting affirmation, the applicant repeated the matters he had stated in his affirmation filed in the application for extension of time before the Judge.

14.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions on or before 1 August 2022.  He did, however, submit a letter dated 8 December 2022 in response to a request by the Department of Justice for his application to be prioritized as he was subject to a deportation order which was not being executed by the authorities pending his present application being resolved.  In his letter, the applicant made no submissions, and only repeated his request for an extension of time, mentioning a habeas corpus application he had made on 22 November 2022, which was fixed for hearing on 23 December 2022.  He also stated that he was still waiting for legal representation in relation to his summons.  As the applicant has not lodged any written submission as directed, he is debarred from lodging and relying upon any written submissions.  We have however taken into account the matters stated in his letter.

Discussion

15.  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.

16.  As noted above, the Judge’s Decision was sent to the last known address of the applicant (which at the time was the Mong Kok 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.

17.  As to the applicant’s claim that he was detained in custody at the time and therefore could not have received the court’s letter, he did not elaborate on the date on which he was informed of the Judge’s decision by the “case officer”. 

18.  In the circumstances, we do not accept the applicant’s explanation for the delay in lodging his intended appeal.

19.  We have 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.  As to the applicant’s complaint that he was effectively prejudiced in the court process by the lack of legal representation, it is well-established that the high standards of fairness applicable do not 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 also 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.  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 18 July 2022 is accordingly dismissed.