RE MOLLA MASUD

CAMP 190/2022

[2022] HKCA 1557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 190 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1412 OF 2018)

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J U D G M E N T

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

1.  By a summons filed on 13 June 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 8 June 2021 refusing his application for leave to apply for judicial review ([2021] HKCFI 1640)  (“the Leave Decision”). By an earlier judgment dated 9 February 2022, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2022] HKCFI 289)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 6 July 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 15 September 2017 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 7 July 2012 and was arrested by the police on the same day.  On 8 July 2012, he was referred to the Castle Peak Bay Immigration Centre (“CIC”).  On 9 July 2012, he lodged a torture claim which was rejected on 18 January 2013, and his appeal was also dismissed on 4 March 2013.  On 16 June 2013, he was arrested by the police again and referred to CIC on 17 June 2013.  By the written representations respectively dated 9 July 2012 and 19 June 2013, he raised a non-refoulement claim on the basis that he had a political problem and received death threats from Awami League members as he belonged to Bangladesh Nationalist Party.  He also claimed that he faced threats from his neighbours owing to a land dispute.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [2] - [4] of the Leave Decision.

5.  By a Notice of Decision dated 15 September 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds other than torture risk[1], namely BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.  On 28 September 2017, the applicant appealed against the Director’s Decision to the Board.  On 11 May 2018, he attended an oral hearing before the Board.  On 6 July 2018, the Board dismissed his appeal.  The Board found that the applicant’s case, at its highest, only showed that his family’s business was being subjected to extortions but with little political connotation in the event.  The Board did not believe that the original extortion would still be pending against the applicant and did not accept that the applicant was specifically singled out as target to be killed.  The Board also found that state protection and internal relocation would be available to the applicant upon his return to Bangladesh.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 17 July 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  In his Form 86 and supporting affirmation, the applicant did not identify with specific particulars any error in the Board’s Decision.

8.  On 27 May 2021, the applicant attended an oral hearing before the Deputy Judge and a Bengali interpreter was present to provide language assistance.  During the hearing, the applicant only repeated his claim that his problem in his home country still existed and that he could not go back.

9.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [9] - [13] of the Leave Decision:

“9.  On 17 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely attached copies of the hearing bundle of documents for his appeal before the Board without putting forward any proper ground for his intended challenge, while at the hearing of his application he just repeated his claim that his problem in his home country still exists that he cannot go back. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

10.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

11.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.

12.  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.

13.  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.”

The EOT Decision

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

11.  On 9 August 2021, the applicant filed a summons (“the EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over 1.5 months late with his intended appeal.  In his summons and supporting affirmation, he alleged that he failed to receive the Leave Decision and the Court’s order within the 14-day period.

12.  On 19 January 2022, the applicant attended an oral hearing before the Deputy Judge and a Bengali interpreter was also present to provide language assistance.  During the hearing, the applicant further claimed that he was late in making his application as he had to seek assistance from a friend.  He repeated that his problem still persisted in his home country.

13.  By the EOT Decision, the Deputy Judge noted that the Leave Decision was sent on the same day to the applicant’s last reported address without being returned undelivered and the applicant failed to provide a good reason for his delay.  The Deputy Judge also noted that in the absence of any error in the Leave Decision being clearly and properly identified by the applicant, there was no prospect of success in his intended appeal. Accordingly, the Deputy Judge refused to grant extension of time to appeal and dismissed the applicant’s summons.

The Present Application

14.  By a summons and supporting affirmation both filed on 13 June 2022, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons and supporting affirmation, the applicant claimed that he did not receive the High Court’s judgment and failed to appeal on time.

15.  Pursuant to the directions made by the Registrar of Civil Appeals on 13 June 2022, the applicant lodged his written submissions on 27 June 2022.  In those submissions, he repeated the alleged factual basis and procedural background of his non-refoulement claim and contended that he would be in danger in his home country as his enemy was powerful and influential.  He also claimed that he did not receive the Leave Decision and failed to appeal on time.

Discussion

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: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

17.  We consider that the applicant’s delay of over 1.5 month as very substantial and we agree with the Deputy Judge that the applicant failed to give any good reason for his delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

18.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

19.  The applicant’s appeal is clearly without merit. Nowhere in his summons, supporting affirmation or written submissions did he identify any error in the Leave Decision with specific particulars.  General and bare assertions of his fear if refouled to his home country plainly do not constitute valid grounds of appeal.  Accordingly, there is no proper ground of appeal and there is no basis to disturb the Leave Decision.

20.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 13 June 2022 dismissed.