RE HOSSAIN MOHAMMAD LOKMAN

HCAL 3009/2018

[2021] HKCFI 28

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3009 of 2018

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DECISION

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Background

1.  On 7 August 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review (“the Judge’s order”) against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 3 December 2018.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 22 September 2017 rejecting the applicant’s non-refoulement claim.

2.  The Judge refused to grant leave to the applicant to apply for judicial review for reasons stated in [12-18] of his decision (Form CALL-1).  Significantly the Judge did not find that the applicant’s intended application for judicial review had any reasonable chance of success.

3.  By a summons filed on 17 September 2020, the applicant applied for extension of time to appeal against the Judge’s order.  The applicant had 14 days from that order to apply to appeal to the Court of Appeal.  He did not do so.  He now requires leave to extend time to appeal against that order out of time. The 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court ended on 21 August 2020.  He was therefore late by nearly 1 month with his intended appeal.

4.  In his summons and supporting affirmation of 17 September 2020, the applicant explained his application was late because he could not come to court as he had a fever.  He also said the Judge failed to show any cause in his decision.

5.  At the hearing on 25 November 2020, he explained that he was sick for about 10 days.  He had a medical certificate but he did not have it at the hearing.  As for the grounds of appeal, he repeated that the Judge did not show any reason for his decision which is not a proper judgment.  He emphasized that what he said in his statements are true.

Discussion

6.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

7.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.

8.  On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

9.  In the present case, the applicant claimed that the delay in his appeal was caused by his sickness with a fever.  I am going to give him the benefit of doubt treating the delay as excusable, and focus on the more important issue of the merit of the intended appeal.

10.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Assessment of evidence and evaluation of risk are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.

11.  In the present case, the applicant’s basis of claim was based on the fear that he would be harmed or killed by people of the ruling political party as he was a member of another political party.  There were incidents that he was attacked and kidnapped.  The Board accepted his evidence of the primary events.  However, it found internal relocation to other places of Bangladesh such as Dhaka, Chittagong or Sylhet a viable alternative for the applicant.  He can relocate as he has done before without being located.  He failed to demonstrate that he faces a serious possibility or a real risk or there are substantial grounds for believing he would be at risk of harm or persecution if he relocates to places that the Board discussed with him.  On the evidence before the Board, the findings were plainly open to the Board. Such findings were within province of the Board not to be interfered with, without errors or irrationality or procedural unfairness found by the Judge.

12.  In my view, the Judge properly reviewed the decision of the Board with rigorous examination and anxious scrutiny.  The Judge demonstrated in his consideration that he had applied the relevant legal principles correctly and considered all the relevant issues reasonably and properly.

13.  In his affirmation in support of his application for judicial review, the applicant stated that his life is in danger if he returns to his country.  He also said he was not able to submit his supporting document during his interview, but he would submit his documents as soon as possible.

14.  There is not merit in this ground.  At [39] of the decision of the Board, the applicant told the Board that he had no further evidence or documents to submit.  The applicant did not submit any documents to the Judge, nor did he do so at the hearing before me.  I find that the applicant has had plenty opportunities to submit his evidence and supporting documents.  He failed to do so.  The complaint is groundless.

15.  The applicant now also complains that the Judge’s decision did not show any reason.  With the detailed reasons demonstrated in the Judge’s decision, the complaint plainly cannot stand.

16.  Having considered the materials before me, I am of the view that the findings by the Board on the conclusion of lack of real risk and the Judge’s observations are justified.  The applicant’s application for judicial review has no prospect of success.  The Judge was perfectly entitled to refuse to grant leave to apply for judicial review.  There is no arguable error in the decision of the Judge.

Conclusion

17.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant extension of time to appeal, and the summons dated 17 September 2020 taken out by the applicant is dismissed.