RE MD ALIM SHEIKH

CAMP 66/2018

[2018] HKCA 728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 66 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 975 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  By summons filed on 18 May 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 13 April 2018 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 3 November 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 22 July 2016 and 2 August 2017 rejecting his non-refoulement claim.

2.  Under Order 59 rule 2A and rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing, pursuant to Order 59 rule 2A(5)(a).

3.  The applicant is a Bangladeshi national.  He first entered Hong Kong on 23 May 2004 and was given permission to remain as a visitor until 6 June 2004.  He overstayed and was arrested by the police on 19 January 2006.  A removal order was made against him and he was removed to Bangladesh on 25 March 2006.  On 28 May 2006, the applicant arrived in Hong Kong on the strength of a Bangladesh passport in another name.  He was given permission to remain as a visitor until 11 June 2006.  He again overstayed, and was arrested by the police on 8 October 2006.  On 28 November 2006, a removal order was issued against him.  His appeal against the removal order was dismissed on 13 December 2006. 

4.  Prior to that on 30 November 2006, he had lodged a torture claim, which was rejected by the Director on 3 May 2013.  His appeal against the Director’s decision was dismissed by the Board on 19 June 2013. Meanwhile, on 7 June 2013, the applicant made a claim for non-refoulement protection. 

5.  On 12 March 2013, whilst waiting for the Board’s determination on his appeal, he registered a marriage with a Hong Kong resident.  His application for entry for residence as a dependant in Hong Kong was refused by the Director on 12 May 2016.

6.  The applicant’s non-refoulement claim is based on his fear that if he were to return to Bangladesh, he would be harmed or killed by some local leaders of the political party, Awami League (“AL”), and their people because he failed to repay their money which his father had taken with him when he absconded.  

7.  The background of the applicant and the facts of his case were set out in details in the decisions of the Director and the Board, and summarised by the Judge at [1] to [7] of Form CALL-1 dated 13 April 2018, [2018] HKCFI 746.  We will not repeat them here.

8.  The Director assessed the applicant’s non-refoulement claim on all applicable grounds except the ground of torture risk[1], which had previously been determined by the Director (see [4] above).  By a Notice of Decision dated 22 July 2016, the Director rejected the applicant’s claim on the grounds of BOR 3 risk[2] and persecution risk[3].   

9.  By letter of 4 July 2017, the Director invited the applicant to submit additional information relevant to an assessment under the BOR 2 risk ground[4]. Not having received a reply from the applicant, the Director proceeded to make an assessment on the basis of the materials previously submitted by the applicant in connection with his non-refoulement claim.  By letter of 2 August 2017, the Director determined against the applicant.

10.  The applicant appealed the Director’s decisions to the Board.  An oral hearing was held on 7 September 2017, at which the applicant elected to give evidence and had answered questions from the Board.  By a decision dated 3 November 2017, the Board dismissed the applicant’s appeal.

11.  The Board considered the applicant’s claim unreliable having regard to his evidence on a number of the key aspects of his claim and his evidence and responses to questions put to him during the hearing. On the totality of the evidence, the Board did not accept there were substantial grounds for believing the applicant would face risks of harm that come within either of the persecution risk, BOR 3 risk, persecution risk or BOR 2 risk grounds.

12.  On 29 November 2017, the applicant filed his Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  At his request, the application was listed for an oral hearing before the Judge on 14 March 2018.  

13.  As summarised by the Judge, the applicant’s grounds for judicial review are:

(1)   Failure to consider properly or adequately the effectiveness of the reforms the state of Bangladesh is said to have undertaken.

(b)    Failure to take into account the concept of extended state acquiescence to private acts against victims of torture.

(c)   Failure to properly or adequately assess the risks that he may face in Bangladesh.

(d)    Failure to conduct proper or adequate enquiry into country of origin information (“COI”) relevant to the applicant’s claim, and being selective in the reliance of such COI.

(e)    Failure to properly consider the psychological impact of the threats made against the applicant.   

14.  The Judge refused to grant leave to apply for judicial review and gave his reasons at [14] to [16] of the Form CALL-1 as follows:   

“14. These are in fact all bold and vague statements which the applicant has not provided any particulars or specifics in support of his claim, and I do not see any basis or merit in any of them. For example, in grounds (a) and (d), it is clear that both the Director and the Board did take into account and carefully consider all those objective COI relevant to recent reforms taken place in Bangladesh after finding corroboration of and accepting the applicant’s concern over police corruptions, and I do not find any merit at all in the suggestion of them being selective in their reliance of the COI when assessing his case.

15. Similarly I am unable to see any merit in ground (b) in the absence of any evidence to suggest that the police or the state had had any involvement with those AL leaders or their men or any acquiescence with any of their actions, assuming that they were true. Clearly the Board has already taken proper care to take into account of all the relevant evidence and materials in its consideration and assessment of the applicant’s claim and arrived at its conclusion as follows:

“58. In the present case, as discussed above, having carefully considered the evidence provided by the Petitioner to support his claims to be at risk of harm from the ‘senior AL leaders’ and ‘gangsters’ whom he claims his father stole money from, the Board has serious concerns about the reliability of his evidence and the general credibility of his claims, as his evidence about a number of key aspects was confused, vague and inconsistent over time, and far from convincing. In light of those concerns and the passage of 16 years without any adverse action taken against him or his family, the Board has no confidence in accepting, and does not accept, on evidence before it, that there are substantial grounds to believe that the Petitioner faces a real risk of being subjected to harm that would rise to the minimum threshold level of degrading treatment or punishment, or torture or cruel or inhuman treatment or punishment, if he returned to Bangladesh in the reasonably foreseeable future.”

16.    Accordingly and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error in law or procedural unfairness in any of them, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  In the premises and for these reasons, I am not satisfied that there is any prospect of success in his intended application for judicial review, and I therefore refuse his leave application.”

15.  The 14-day period[5] for the applicant to appeal against the Judge’s decision expired on 27 April 2018. On 18 May 2018, the applicant took out the present summons seeking leave to appeal out of time.

16.  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 prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

17.  The applicant was late by 21 days.  He explained that there was postal delay in the delivery and receipt of the Form CALL-1 because he did not have a constant residential address.  It is not an insubstantial delay, and there are no particulars to the explanation.  Nevertheless, the more crucial consideration is the prospect of success of the intended appeal: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226.  It is to this that we now turn.    

18.  Both in the summons and supporting affirmation, the applicant stated he would suffer hardship if he returned to his home country.  He complained that the Board relied on sources of news that were unreliable, not officially recognized or hearsay, and also on cases that were outdated.  It is said that the lack of credible information had led the Board to make groundless speculations.

19.  The matters advanced by the applicant do not constitute proper grounds of appeal.  An appeal is to review the correctness of the Judge’s decision and not to re-assess the applicant’s non-refoulement claim or to review the decision of the Board.  The applicant has not identified any errors in the Judge’s decision and reasons. Neither has he indicated the basis on which this Court may interfere with the Judge’s decision. 

20.  On 30 July 2018, pursuant to the directions of the Registrar of Civil Appeals, the applicant lodged a set of documents marked “Written Submission”.  It comprised the Director’s Notice of Decision dated 22 July 2016 and the record of the applicant’s interview with the immigration officer conducted on 12 April 2013.  These documents do not serve to advance the applicant’s application.    

21.  The applicant’s intended appeal has no prospect of success. This being the case, it would be futile to extend the time for appealing.  Accordingly, we refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.

22.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of High Court that the applicant may not request our determination to be reconsidered at an oral hearing.