RE HOSSAIN MD SUMON

CAMP 178/2018

[2019] HKCA 363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 178 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 551/2017)

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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 Deputy High Court Judge Woodcock given on 7 June 2018 refusing leave 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 dated 17 August 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 13 April 2016 and 21 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 11 December 2013 illegally and was arrested by the police on 21 January 2014. He lodged a non-refoulement claim on 25 January 2014.

3.  The applicant’s claim was based on threats from members of an opposing political party and concern that he will be arrested for a crime he did not commit.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form [2018] HKCFI 1121.

4.  By a Notice of Decision dated 13 April 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 21 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After the hearings on 21 July 2017 and 2 August 2017, the Board dismissed the appeal on 17 August 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [36] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [60] that state protection would be available for the applicant and at [45] and [61] that internal relocation would be viable.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 24 August 2017 which contained no ground for seeking relief.

9.  In the affirmation in support of the leave application dated 24 August 2017, the applicant advanced the following grounds for judicial review which are summarised below:

(i) procedural impropriety/unfairness in the Board’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(ii)     irrationality in the Board’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(iii)    irrationality in the Board’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights;

(iv)    irrationality in the Board’s failure to analyze and assess whether state protection existed and misdirected itself as to the extended meaning of state protection;

(v)     irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(vi)    procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(vii)   procedural impropriety/unfairness in the Board’s application of the incorrect standard of proof; and

(viii)  procedural impropriety/unfairness due to a lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

10.  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 [11] to [17] of the CALL-1 Form:

“11. I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions in the oral hearing. I find the adjudicator’s decision to be without fault. He analysed material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

12. There are eight grounds in this affirmation and all contain no particulars. Grounds 5, 6, 7 and 8 contain no particulars. As an example for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned to the applicant. Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that allegation. These grounds have no merits.

13. In grounds 1, 2 and 4, it is submitted the adjudicator failed to consider relevant and up to-date Country of Origin (‘COI’) research, failed to do sufficient research and enquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator did not need to consider COI information because he found the applicant was not at any risk if refouled. It was also unnecessary to assess State acquiescence or whether Bangladesh had a consistent pattern of mass violation of human rights for the same reason. These grounds are not arguable.

14. The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. I am satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal. In fact, during the oral hearing the applicant admitted to this court that the interpreter did explain the procedure and he ultimately understood.

15. There is a complaint that the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it before the first and second appeal hearing dates.

16. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

17.    In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

11.  According to the court’s records, a copy of the CALL-1 Form and the sealed copy of the deputy judge’s order were sent to the applicant on 7 June 2018.

Application for extension of time to appeal and grounds for appeal

12.  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 10 August 2018, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ Bruno Chan on 20 November 2018 [2018] HKCFI 2424.

13.  By a summons dated 28 November 2018, the applicant renewed his application for an extension of time to appeal before this court.  His application for extension of time is supported by an affirmation filed on the same day where he stated “I’m late because I didn’t see the letter”.

14.  The applicant did not give any ground of appeal in the summons or the affirmation. He did not file any draft Notice of Appeal.

15.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 30 November 2018, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

16.  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.

17.  The applicant claimed that he was late because he did not see the letter (presumably he was referring to the letter enclosing the CALL-1 Form).  He did not give any explanation for not seeing the letter or how he came to discover the letter eventually.  Further, this explanation was rejected by DHCJ Bruno Chan for reasons which appear to us to be perfectly valid.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.

18.  The delay of over 1.5 months was not insubstantial.  We nonetheless go on to consider the merits of the intended appeal.

19.  The applicant did not provide any ground of appeal.  There is nothing before us to show that the intended appeal has any prospect of success.  We will not grant extension of time for a hopeless appeal.  The summons of 28 November 2018 is dismissed accordingly.

20.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.