RE SOHEL MOHAMMAD

CAMP258/2019

[2021] HKCA 320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 258 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 439/2018)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 17 June 2019 refusing 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 (“Board”) dated 5 March 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 11 July 2016 and 30 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 11 June 2013 illegally and was arrested by the police on 19 June 2013.  He lodged a non-refoulement claim on 27 January 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [1] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 11 July 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 30 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 a hearing on 8 August 2017, the Board dismissed the appeal on 5 March 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  The Board held that there is insufficient evidence to show that he will be subject to any of the proscribed harm upon his return.  The Board was also satisfied that state protection would be available for the applicant and internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 19 March 2018 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 19 March 2018, the applicant deposed that:

“I would like to refit the decision my non refoulement claims I find the decision unfair…”

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  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 [13] to [17] of the CALL-1 Form:

“13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 Re Litoun Mounsy [2018] HKCA 537.

14. In the present case the applicant declined to testify before the Board and hence there was no objective evidence to support his material assertions. Based on her evaluation of the evidence and information available to the Board the adjudicator was entitled to make her careful and detailed findings in paragraphs 54 – 90 of the decision as to the applicant’s asserted risk of harm and rejected his claim. In the absence of any error being identified by the applicant in the decision, I am unable to see any reason for reversing or interfering with those findings as to his asserted risk of harm in the Board’s decision.

15. Furthermore, the fact that it has been established by both the Director and the Board in their respective 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 part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16. 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.

17.  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.”

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 18 July 2019, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 14 October 2019.

13.  By a summons dated 15 October 2019, the applicant renewed the application for leave to appeal out of time against the judge’s decision to refuse leave to appeal.  In the summons he stated that:

“[the judge] dismissed my summons but he did not show any real cause. I do not get my first result on time but he did not consider my cause. If I did not get paper how can I submit Court of Appeal. It is very easy to understand”

14.  In his affirmation of the same day filed in support of the application, the applicant deposed that:

“[the judge] dismissed my claim of summons but I failed to submit my Court of Appeal timely because I did not get letter timely”

15.  In his skeleton submissions dated 1 November 2019, the applicant said it is dangerous for him to return.  He submitted that the Director and the Board did not consider his problems and that their decisions were wrong.  He asked for leave to apply for judicial review.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

17.  The applicant claims that he did not receive the CALL-1 Form without giving any details or evidence in support.  He did not explain how and when he eventually came to know about the CALL-1 Form.  The CALL-1 Form was sent by post on 17 June 2019 to the address he stated in his Form 86. There is no reason why he did not receive the same in the ordinary course of post. The vague and general assertion by the applicant that he did not receive the same in good time is not sufficient to rebut the presumption that he did receive it in the ordinary course of post well within the appeal period.

18.  The applicant contended that the judge dismissed his application without cause. However, as the judge explained in [13] – [16] of the CALL-1 Form, the applicant failed to establish that there is any public law ground for challenging the Board’s decision.  The applicant failed to engage with the judge’s reasons given in those paragraphs and this ground of appeal is therefore not reasonably arguable.

19.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 15 October 2019 is dismissed accordingly.