RE SAYAL MOHAMMAD SUJAN

CAMP 345/2022

[2022] HKCA 1663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 345 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2714 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 To (“Judge”)  dated 22 June 2021[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 22 November 2018.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 10 November 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Bangladeshi national born in 1987.  He entered Hong Kong illegally in November 2012 and was arrested by the police.  He raised a non-refoulement claim on 22 November 2012 on the basis that if he returned to Bangladesh, he would be harmed or killed members of the Awami League (“AL”)  because of his refusal to stop working for the Bangladesh Nationalist Party (“BNP”).  The detailed factual contents of his claim were set out at [14] and [15] of the Director’s decision dated 10 November 2017.

3.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By notice of decision dated 10 November 2017, the Director rejected the applicant’s claim.

4.  The applicant appealed to the Board against the decision of the Director.  A hearing was held by the Board on 17 April 2018 at which the applicant gave evidence.  The Board was prepared to accept that the applicant was a member of the BNP but found that as an ordinary member and with low involvement in political activities, he did not face serious harm or death from the AL.  The Board did not accept the incidents alleged by the applicant to have resulted in harm to him.  The Board also found that internal relocation would be a viable option for the applicant. Accordingly, in its decision dated 22 November 2018, the Board rejected the appeal in respect of all applicable grounds.

The Judge’s decisions in the court below

5.  On 30 November 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  The applicant did not specify any ground for judicial review in the Form 86.  In his affirmation he simply reiterated the alleged danger he faced in his country.

6.  After hearing from the applicant at a hearing on 15 June 2021, the Judge issued his decision on 22 June 2021, refusing to grant leave to apply for judicial review.  The reasons were set out at [12] – [16] of the Form CALL-1 as follows:

“ 12. The Applicant did not put forward any grounds in his notice of application for leave to apply for judicial review.

13. He was invited by letter from this Court dated 24 May 2021 to file written submissions which he would like to make. He did not file any.

14. At the hearing, repeated attempts were made to ascertain from him any possible basis for judicial review of the Decision. He only repeated that his case is true; that the immigration officer did not properly consider his case; and that his life would be in danger, if refouled to Bangladesh. These are statements of facts which had been considered by the Board. Other than expressing his disagreement with the Decision, the statements contain no criticism of the Decision.

15. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6]. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, procedural unfairness unreasonableness and irrationality.

16. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  This conclusion was further supported by availability of internal relocation.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  There are no such vitiating elements in the Decision.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.”

7.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), but only took out a summons on 9 August 2021 to seek an extension of time to appeal against the decision of the Judge.  In his summons and supporting affirmation, the applicant stated that he did not get the court’s judgment.

8.  Deputy High Court Judge Suffiad determined the summons on the basis of the documents alone.  In his written decision dated 22 October 2021, he dismissed the application as he considered that the intended appeal was not reasonably arguable.[7]

The renewed application before this Court

9.  By summons filed on 13 September 2022, the applicant seeks 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 his accompanying affirmation, the applicant stated he was unaware of the rules regarding the 14-day time limit and never received the decision of the High Court but only got it from the immigration officer.  He asserted that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in his country.

10.  The applicant did not lodge any written submissions despite the direction of the Registrar of Civil Appeals that he should do so by 27 September 2022.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

11.  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.

12.  The applicant’s application to the Judge for extension of time to appeal was made more than 3 weeks after the deadline for appeal (excluding the time in August 2021).  This is a substantial delay for which there is no proper and valid excuse.  Time should not be extended unless there is a real prospect of success in the appeal.

13.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.

14.  In the present case, the Board, having heard the applicant, came to the conclusion that the crucial parts of his case were not credible, and did not accept that as an ordinary BNP member he would be subject to serious harm from AL.  The Board also concluded that even if there was a risk of harm, the applicant could avoid it by relocating within Bangladesh.  These are findings open to the Board on the evidence and based on its reasoning as set out in its decision, and cannot be impugned by the court without finding any public law error in the decision-making process of the Board, which the applicant has failed to show.

15.  The applicant has also failed to show how the Judge has erred in refusing leave for judicial review. 

16.  Having considered the materials before us, we share the Judge’s view that there is no ground for judicial review.  The Judge was right to refuse leave.

17.  We likewise do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The applicant’s summons is accordingly dismissed.