RE HOSSAIN MOHAMMAD LOKMAN

CAMP 61/2021

[2021] HKCA 1770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 61 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 3009/2018)

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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 KW Lung given on 7 August 2020 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 3 December 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 22 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 21 November 2012 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 24 November 2012. 

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 Board at [6] of its decision.

4.  By a Notice of Decision dated 22 September 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After hearings on 25 April 2018, 26 June 2018 and 22 August 2018, the Board dismissed the appeal on 3 December 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  While the Board accepted that the applicant provided a credible account of the events giving rise to his claim, the Board was satisfied at [82]‑[89] that internal relocation would be viable.  The Board therefore dismissed the claim for protection under all of the applicable grounds.

The judge’s decision

7.  The applicant filed a Form 86 on 31 December 2018 seeking to judicially review the Board’s Decision, where the applicant stated that his enemies were looking for him and that it would be dangerous for him to return.

8.  In his affirmation in support of the leave application filed on 31 December 2018, the applicant deposed that:

“…I am not satisfied [with the Board’s Decision] because I know that I have been life threaten by my enemies I was unable to submit my supporting document during my interviews but I will take my all supporting document and submit to you as soon as possible include my hospital discharging certificate…”

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

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 [12] to [19] of the CALL-1 Form:

“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant.

13. The Court of Appeal in Re Ahmed Syed Rafiq [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].

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. … Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

15. The Board accepted his evidence and found that he might be in danger if he returned to where he lived before. But he had the option of internal relocation open to him. Bringing in more documents to prove his case will assist him.

16. The Court of Appeal in TK v Michael Jenkins Esq and Director of Immigration [2013] 1 HKC 526, at §§32 and 33 that if internal relocation is available to him and it is not unduly harsh for him to relocate, there is no justification for affording him international protection under either the Refugees Convention 1951 or the CAT.

17. 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.

18. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

19. I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

Application for extension of time to appeal and grounds for appeal

11.  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 17 September 2020, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ CP Pang on 5 January 2021.

12.  By a summons filed on 19 February 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“The High Court Honourable Judge refused my leave to apply for judicial review, which is not a correct decision. I want to challenge his decision, but my time is over, please extend my time.”

13.  In the affirmation filed on the same day, the applicant reiterated the matters raised in the summons.

14.  In his skeleton submissions lodged on 9 July 2021, he submitted below:

(1)  “every day many letters come to our box, some time some one throw all letters to dust bin.  I do not know why I did not get the judgment”;

(2)  the Director and the Board rejected his claim based on country of origin information (COI) and “COI and practical life is far difference”;

(3)  “the High Court did not find any error of proceeding.  But total process is full of error.  Adjudicator was not a neutral judge.  All his question was abnormal.”

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

16.  The applicant claimed that sometimes his letters get thrown into the dustbin.  However, this court has repeatedly held that it is the responsibility of an applicant to provide an address that can be used for correspondence with the court.  We are therefore of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.

17.  We nonetheless go on to consider the merits of the intended appeal.

18.  As for the ground based on the alleged errors on the part of the Director and the Board, this court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker.  On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.  This ground is therefore not a valid ground of appeal.

19.  The applicant claimed that he was not satisfied with the decision by the judge but he failed to establish any error on the part of the judge.  We have carefully considered the reasons given by the judge at [12]‑[19] of CALL-1 Form and find no error in the judge’s reasoning.  The applicant’s complaint is without merit.

20.  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 19 February 2021 is dismissed accordingly.