RE RAHMAN S M SHAFIQUR

CAMP 517/2022, [2023] HKCA 1266

On appeal from [2022] HKCFI 588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 517 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 281/2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 25 February 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against (i) the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 17 January 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 18 September 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”); and (ii) the Director’s Decision itself.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 10 September 2015, and shortly thereafter, on 13 September 2015, he lodged his non-refoulement claim with the Immigration Department.

3.  The applicant’s claim was based on a fear of being harmed or killed by local supporters of the rival political party, the Awami League.  The details of the applicant’s claim have been summarised by the Judge at [2] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 2 August 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board did not find the applicant’s claims of attack by members of the Awami League to be credible on the evidence, which had led it to conclude that there was no real risk of any proscribed harm being faced by the applicant should he be refouled to Bangladesh.

The Judge’s decision

6.  The applicant filed a Form 86 on 30 January 2019 seeking to judicially review the Board’s and the Director’s Decisions, without setting out any grounds.

7.  In his supporting affirmation, he repeated his alleged troubled history with the Awami League and its members, and he also, inter alia, contended that the interpreter who assisted him during the screening interview with the Director “can’t understand [his] speech” and that the interpreter did “not interpret all [his] speech correctly” which therefore rendered the Director’s Decision “not correct”.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [9] to [14] of the CALL-1 Form:

“9.  On 30 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim as before and with some bare assertions against the interpreter during his screening interview before the immigration officer without any details or particulars, while his complaints about the immigration officer of having no “practical experience” of his problem in Bangladesh or that the officer asked some unnecessary questions of him over his claim are simply untenable and not reasonably arguable for his intended challenge, nor did he request any oral hearing for his application.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 26-38 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the findings of the Board.  

12.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  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.

14.  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 present application for extension of time to appeal

9.  The applicant’s address as stated in his Form 86 was at Pat Heung Village, Yuen Long (“the Yuen Long Address”).  According to the records of the court, a letter enclosing a copy of the CALL-1 Form was sent to the Yuen Long Address on 25 February 2022 and was not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 25 February 2022.

11.  The applicant thereafter took out a summons in the Court of First Instance on 10 May 2022 seeking extension of time to appeal, in which his address was stated to be the Yuen Long Address.  In the summons and his supporting affirmation, he claimed that he did not lodge the appeal in time because he could not leave his residence due to the pandemic.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 12 October 2022[6].

13.  By a summons filed on 6 December 2022, the applicant renewed his application for an extension of time to appeal before this court, wherein he claimed (for the first time) that he did not “get the High Court letter on time” and that he did not agree with the decision of the court.

14.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions on or before 20 December 2022.  He was therefore deemed to have abandoned his right to rely on written submissions.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.  As noted above, the Judge’s decision was sent to the last known address of the applicant at the time (i.e. the Yuen Long Address) and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and that he has had knowledge of the Judge’s decision within the period in which he was permitted to lodge the intended appeal.

17.  Further, there is no explanation on the part of the applicant as to how and when he had come to know of the decision by the Judge.  We also see no merit in his contention that he could not have lodged the appeal on time because he allegedly could not leave his residence by reason of the pandemic.

18.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.

19.  The delay of around 6 weeks by the applicant in renewing his extension of time application before this court is not insignificant, and his application is liable to be dismissed on the basis of his delays.  However, we have nonetheless proceeded to consider the merits of the intended appeal.

20.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.  As to the applicant’s complaint concerning the alleged misinterpretation of his “speech” by the interpreter during his screening interview with the Director’s officers, he has provided no evidence whatsoever in support, nor has he identified with particulars as to which matters the interpreter was said to have misinterpreted at the interview, and further still, in what way such alleged misinterpretation had impacted on the proper processing and determination of his claim.

23.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

24.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 6 December 2022 is accordingly dismissed.