RE ANUKUL KAR ALIAS BABUL DEB

CACV 198/2022

[2023] HKCA 9

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 198 OF 2022

(ON APPEAL FROM HCAL 1759/2021)

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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 appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  given on 11 May 2022 refusing to extend time for the applicant to apply for leave for judicial review. The intended judicial review was against the decision of the Director of Immigration (“the Director”)  dated 4 February 2021 refusing the applicant’s request to make a subsequent non-refoulement claim under section 37ZO of the Immigration Ordinance (Cap 115)  (“the Director’s Decision”).

Background

2.  The applicant is a national of Bangladesh.  He first entered Hong Kong illegally on 5 March 2007.  He raised a torture claim on 26 July 2007, which was refused by a decision of the Director dated 11 February 2011, upon which he was repatriated to Bangladesh on 25 March 2011.

3.  Thereafter, the applicant again entered Hong Kong illegally and was arrested by the police on 27 December 2011.  He lodged a second torture claim on 31 December 2011, which was again rejected by the Director on 15 May 2012.

4.  On 24 December 2015, the applicant lodged a non-refoulement claim based on a fear of being harmed or killed by Muslims from the Awami League for refusing to pay extortion money and by another creditor.

5.  By a Notice of Decision dated 9 September 2016, the Director decided against the applicant’s non-refoulement claim based on the BOR 3 risk[1], the persecution risk[2] and the torture risk[3].

6.  A Notice of Appeal was lodged by the applicant on 19 September 2016 against the Director’s decision of 9 September 2016.  Meanwhile, by a Notice of Further Decision dated 20 July 2017, the Director found against the applicant’s claim based on the BOR 2 risk[4].

7.  By a letter from the applicant to the Board dated 20 August 2018, he applied to withdraw his appeal (against the Director’s decision dated 9 September 2016)  by reason that it was safe for him to return to Bangladesh.

8.  By a decision dated 27 August 2018, the Board directed that the Director’s decision dated 9 September 2016 was affirmed, and that the applicant’s intended appeal be withdrawn upon his request.

9.  By a letter dated 15 October 2020 to the Director, the applicant applied to make a subsequent claim for non-refoulement protection.  After considering the background of the applicant and the available information, by a decision dated 4 February 2021 (i.e. the Director’s Decision), the Director declined the applicant’s request to make a subsequent claim by reason, inter alia, that he failed to provide sufficient evidence in writing to satisfy an Immigration Officer that there has been a significant change of circumstances since his previous claim was determined.

The Judge’s decision

10.  The applicant filed a Form 86 on 29 December 2021 out of time, seeking to judicially review according to the Form 86, the Director’s decisions of 11 February 2011, 24 December 2015, 9 September 2016, 20 July 2017 and 4 February 2021, and the Board’s decision of 27 August 2018.  He complained in the Form 86 that the aforesaid decisions “[was] not reasonable and fair (as required by the Wednesbury test)” and that he would face “extra-judicial killings” should he be refouled.  In his supporting affirmation filed on the same date, he merely exhibited a copy of the Director’s Decision.

11.  After summarising the facts and background of the case, giving due consideration to the Director’s Decision, the Judge refused to extend time for the applicant to apply for leave for judicial review. The Judge gave the following reasons in refusing to extend time at [8] to [17] of his decision dated 11 May 2022 (“the CALL-1 Form”)[5]:

“8.  There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

‘(1)  Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

  (2)   A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

  (a)  there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

  (b)  the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

  (3)   In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

  (4)   If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

  (5)   If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.’

9.    Accordingly, the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did on 26 January 2021 via his lawyer from Duty Lawyer Service (‘DLS’).

10.  By a Notice of Decision dated 4 February 2021 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

11.  On 29 December 2021 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, in which he stated that the Director reached the decision wrongly in assessing his request to make a subsequent claim, and that the decision was not fair or reasonable in failing to consider that his right to life must be protected by criminal law from extra-judicial killings which he may face if deported back to his home country.

12.  By then the Applicant was also seriously out of time with his application, as Order 53 Rule 4(1)  of the Rules of High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 4 May 2021, the Applicant was therefore more than 7 months late with his application, and in considering whether to extend time, the Court shall have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of more than 7 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form 86 or supporting affirmation, nor did he attend the scheduled hearing of his application without any explanation, and as the record shows that the decision was sent on the same day to him via DLS without being returned through undelivered post, I do not see any good reason for his serious delay.

15.  As for the merits, if any, of his intended application, as noted above the Applicant did not provide any details or particulars or elaboration for his bare assertions that the decision was unfair or unreasonable, while even on his own case at the highest that there was never any suggestion or evidence from him to indicate that he may face any risk of extra-judicial killing upon his return to Bangladesh, while the Director was on the basis of the material and information submitted by his lawyer was perfectly entitled to find that the Applicant had failed to show any significant change of circumstances since his previous claim was finally determined, or that such change when taken together with his previous material would give his subsequent claim any realistic prospect of success.

Conclusion

16.  In the premises, and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim.

17.  Accordingly, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and dismiss his leave application.”

Grounds for appeal

12.  In the Notice of Appeal filed on 16 May 2022, the applicant stated:

“I am not satisfied with the Decision because its away from facts and reality which are related with my case. There is no any transparency in these decision. Please accept my application and allow me to process further my case.”

13.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

14.  The applicant lodged written submissions on 23 May 2022, in which he stated that “at this moment it’s not possible for [him] to go back [to Bangladesh]” because his “enemies” still posed a threat for him there.

Discussion

15.  The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

16.  In his application in the court below, the applicant provided no particulars as to any respects in which the Director was unreasonable or unfair, or had erred in law, in reaching the Director’s Decision, or how such Decision could be said to be Wednesbury unreasonable.

17.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the decision-maker. The Judge is not required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return, and should not usurp the role of the decision-maker(s)  in the first instance.  The Judge considered the Director’s Decision and found no basis for intervening.  In our view, he was clearly correct to do so.

18.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

19.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.