|
CAMP 121/2022
[2023] HKCA 135
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 121 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO. 1538 OF 2018)
____________________
____________________
| Before: |
Hon Chu VP and M Poon JA in Court |
| Date of Judgment: |
8 February 2023 |
________________
JUDGMENT
________________
Hon Chu VP (giving the Judgment of the Court):
1. This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 21 January 2022[1] refusing his application for leave to apply for judicial review.
2. The applicant has filed an affirmation to support his application. Despite directions given by the Registrar of Civil Appeals, he has not lodged any written submission.
3. Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.
4. The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decisions of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.
5. The applicant is a national of Bangladesh aged 51. Between 1998 and 2001, he was a frequent traveller to Hong Kong using an Indian passport under the name of Ifran Muhammad. As he overstayed, he was repatriated to India on 12 March 2001. Between 2002 and 2007 he again made frequent visits to Hong Kong using a Bangladesh passbook in the name of Ripon Miah. On 9 March 2008, he was arrested by the police for entering into Hong Kong illegally. Upon enquiry by the Immigration Department, he admitted that the identity in the Bangladesh passport was his true identity.
6. On 5 April 2008, he made a torture claim, which he withdrew by a letter dated 30 April 2009. By another letter dated 19 June 2009, he requested to maintain his torture claim. By a further letter dated 26 February 2013, the applicant indicated that he wished to return to Bangladesh and asked to cancel his torture claim. However, on 10 December 2013, the applicant requested to re-open his torture claim. On 15 January 2014, after consideration, the Director allowed the claim to be reopened. Upon the commencement of the unified screening mechanism, the claim was taken to be a non-refoulment claim.
7. The applicant’s claim is based on his fear of being harmed or killed by a person called Sattar Saheb (“Sattar”) and his people, who were affiliated with the Awami League (“AL”) and had falsely accused him of being responsible for the murder of Sattar’s brother, Ashok Ali, as he was affiliated to the Bangladesh Nationalist Party (“BNP”). The details of the applicant’s claim were set out in the decision of the Director at [7]. We will not repeat them.
8. By two decisions dated 27 October 2015 and 24 October 2016, the Director rejected the applicant’s claim. The first decision covers the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds whereas the further decision concerns the BOR 2 risk[5] ground.
9. The applicant appealed the Director’s decisions to the Board. The Board heard the appeal at an oral hearing held on 22 November 2016, during which the applicant gave evidence and answered questions put by the Board. By its decision dated 20 July 2017, the Board dismissed the appeal. For the reasons set out in [73] to [91] of the decision, the Board found the applicant’s evidence incredible and placed no reliance on it. The Board did not accept he was pursued by the police or his illegal entry into Hong Kong was due to fear of harm at the hands of the AL supporters. The Board found his non-refoulement claim was simply a ploy to remain in Hong Kong. The Board also found that internal relocation options were reasonably opened to him which would negate or reduce any risk of harm that the applicant might face. The Board concluded that the applicant’s claim failed on all of the applicable grounds.
10. On 3 August 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He did not put forward any ground for seeking relief. He only stated in his affirmation that the Board’s decision was based on assumption and did not have regard to the evidence.
11. The Judge considered the application on paper. By a Form CALL-1 dated 21 January 20212 he refused to give leave to apply for judicial review for the reasons set out in [15] to [17] as follows:
“15. He has submitted no valid ground to assist his application. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22]. It is simply not true to say that the Board made assumptions or inference without evidence in support. The Board had set out the reasons for its findings.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”
12. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.
13. By a summons filed on 11 February 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 10 March 2021[6], the Judge refused the application.
14. On 21 April 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application. This renewed application is late by about four weeks as Order 59 rule 2B(3) of the Rules of the High Court required a renewed application to the Court of Appeal to be made within 14 days from the first instance judge’s refusal of leave to appeal.
15. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.
16. For the intended appeal, the applicant was late by one week, which is not a substantial delay. In the application made to the Judge, the applicant explained that he did not receive the court decision timely. Having regard to the relatively short delay and there were intervening Chinese New Year holidays, we would focus on the merits of the intended appeal.
17. In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].
18. 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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.
19. In the present application, the applicant only stated in the summons that the Court, the Board and the Director did not properly consider his case. He did not elaborate on it or provide any detailed grounds for his application. The applicant has simply failed to identify any proper basis on which the appellate court may disturb the Judge’s decision.
20. Further, as the applicant did not set out any specific ground in support of his intended judicial review, the Judge is right to conclude that his intended judicial review has no prospect of success.
21. We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.
22. As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 21 April 2022.
(Carlye Chu)
Vice-President |
(Maggie Poon)
Justice of Appeal |
The applicant, unrepresented, acted in person.
[1] [2022] HKCFI 225
[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.
[6] [2022] HKCFI 630
|