RE MIR MOHAMMAD DULAL MIAH

CAMP 105/2020

[2020] HKCA 1025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 105 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1280 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

Introduction

1.  On 9 December 2019, Deputy High Court Judge Bruno Chan (“the Judge”) refused to extend the time for the applicant to apply for judicial review.[1] The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) given on 28 March 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 31 July 2017 refusing his non-refoulement claim.

2.  On 24 June 2020, the Judge refused to give leave to the applicant to appeal his decision to the Court of Appeal.[2]  By summons filed on 27 July 2020, the applicant applied to this Court for leave to appeal against the decision of 24 June 2020.  On 29 September 2020, the Registrar of Civil Appeals directed that the summons be treated as an application for extension of time to appeal against the Judge’s 9 December 2019 decision (see also [11] and [12] below).

3.  The applicant had filed an affirmation and also lodged a written submission in support of his application.

4.  Under Order 59 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.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.  We have therefore proceeded to process this application on the paper.

Background

5.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally in 2014.  He surrendered to the Immigration Department on 22 June 2016 and raised a non-refoulement claim.  His claim was based on fear of being (i) killed by members of the Awami League (“AL”) as he did not pay extortion money to them, and (ii) bring pursued by the Bangladesh police for having taken part in an unlawful protest.    

6.  The applicant’s claim was set out in detail in the decisions of the Director and the Board, and summarised by the Judge in [2] to [9] of the Form CALL-1 dated 9 December 2019.  In gist, the applicant claimed he was a supporter of the Bangladesh Nationalist Party (“BNP”).  He is married with five children and used to run a shop selling mobile phone accessories.  In June 2012, a local gangster, who was also a AL member, together with his people attacked the applicant with knives, after he did not pay extortion money as demanded.  The applicant reported the matter to the police but no action was taken.  There was a second attack in 2013, after which the applicant went into hiding.  In November 2013, the applicant took part in an anti-government protest organised by BNP which ended when police taking forcible action to disperse the participants.  Many were arrested but the applicant managed to escape.  After discussing with his family and fearing for his personal safety, the applicant left his country for mainland China, from where he sneaked into Hong Kong.        

The Director’s decision

7.  By his decision dated 31 July 2017, the Director rejected the applicant’s claim on the torture risk^[3], BOR 2 risk^[4], BOR 3 risk^[5] and persecution risk^[6] grounds.  

The Board’s decision

8.  The applicant’s appeal to the Board was heard on 30 October and 20 November 2017, during which he gave evidence and answered questions put to him by the Board.  By its decision dated 28 March 2018, the Board dismissed the appeal.  The Board doubted the credibility of the applicant and his claim of fear of being harmed by members of AL in view of the inconsistencies in the evidence.  The Board considered that, in any event, internal relocation was reasonably available to the applicant.

The Judge’s decisions

9.  On 4 July 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the decision of the Director.  The application was late by six days.[7]  The Judge summarised the applicant’s ground for seeking relief as follows[8]:

“(1) that the Board erred in failing to apply high standards of fairness by not taking into account the evidence adduced by the Applicant in support of his claim and that minor discrepancies under cross-examination should not cause it to find the Applicant unreliable;

(2) that the Board erred in approaching the matter by simply trying to see whether it could find fault with the decision of the immigration officer as shown by the general practice of the Board not to question or find fault with the decision of the Director; and

(3) that the Board failed to consider the conditions of the Applicant’s country of origin in its assessment of the Applicant’s claim.”

10.  The Judge heard the application at an oral hearing.  By his decision dated 9 December 2019, the Judge refused to extend time and dismissed the application for leave to apply for judicial review.  The Judge considered that the delay of six days was not significant and noted the applicant’s explanation that by the time he was released from the custody of the Immigration Department, the three-months’ period for applying for judicial review had already expired.  He, however, was not satisfied that the intended judicial review had any prospect of success for the reasons he gave in [18] to [23] of the Form CALL-1:

“18. For his complaint in Ground (1) that the Board failed to apply high standards of fairness and that it should not have found his evidence unreliable over some minor discrepancies under cross-examination, but for which the Applicant did not provide any particulars or elaborations as to how it was so, and having examined the detailed and thorough analysis and reasoning set out in paragraphs 46 – 67 of the Board’s decision, I do not find any error in its assessment of the Applicant’s claim, nor do I find any basis to challenge the finding of the Board.

19. As for his complaint under Ground (2) over the Board’s approach in its assessment and determination of his claim, of which the Board did set out in paragraphs 7 and 29 – 45of its decision, and having carefully examined them I find its approach of treating the matter as a rehearing of the Applicant’s claim based on all the materials and evidence available before it including those given by the Applicant at his oral hearing before the Board entirely correct, and I do not see any rationale for the Board to question the Director or his decision given the mechanism for the appeal treated as a rehearing of the claim to be before a different person is actually a safeguard for fairness. In the premises I do not find any basis or merit in this complaint of the Applicant either.

20. Regarding his complaint under Ground (3) that the Board failed to properly consider the relevant COI in assessing his claim, it is plain that the Board did take into account those COI in the hearing bundle as set out in paragraph 6 of its decision, but given the nature of the Applicant’s claim, I agree that it was not necessary for the Board to go into any details of the COI which was not material to its assessment or determination of the claim. As such I do not find this ground reasonably arguable for the intended application.

21. As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

22. The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part 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.

23. 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.”

11.  On 16 December 2019, the applicant filed a summons to apply for leave to appeal the Judge’s decision on the basis that the Judge’s decision not to extend time for applying judicial review is an interlocutory decision.  The Judge heard the application on 26 May 2020.  By his decision handed down on 24 June 2020, the Judge refused to give leave to appeal. 

The present application

12.  On 27 July 2020, the applicant filed the present summons.  On 14 July 2020, the Court of Final Appeal handed down the Reasons for Judgment in H v Director of Immigration [2020] HKCFA 22 which held that there was no need to apply for leave to appeal to the Court of Appeal in respect of a refusal to extend time for applying for leave to judicial review.  However, by then, the time for the applicant to appeal the Judge’s 9 December 2019 decision had expired.  In light of this, the Registrar of Civil Appeal directed that the summons be treated as an application for extension of time to appeal against the Judge’s decision dated 9 December 2019.  

Reasons for our decision

13.  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 success 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). 

14.  Having regard to the matters stated in [11] and [12] above and the fact that the applicant is not legally represented, we are prepared to accept that the delay is excusable.  We would focus on the prospect of success of the intended appeal.     

15.  The applicant has not provided any proposed ground of appeal in his summons.  In the accompanying affirmation, he stated that (i) the Judge’s decision was unfair and did not show any good cause for refusing him leave to apply for judicial review; (ii) there are many good causes for accepting his application; (iii) the Director and the Board did not screen his claim; and (iv) he cannot understand why the Judge did not give him leave.

16.  In his written submission, the applicant further stated that (i) his claim is true but it is not possible for him to “clear his claim to the authorised officers”; (ii) the quality of the interpreter provided by the Director was poor and he could not fully “clear [his] story/problem” to the officer; (iii) it is not fair in that the officers only talked to him, but did not visit Bangladesh because had they done so, they would realise the real situation in his country and his problem; and (iv) in finding there were no merits in his claim, the Judge only followed the decision of the Board and thought it did not make any mistake.    

17.  For the reasons set out below, we are of the view that the intended appeal has no prospect of success and is unarguable. 

18.  Firstly, evaluation of risk of harm and assessment of claim are matters for the Director and the Board, who are the primary decision makers.  In an application for judicial review, the Court will not interfere with the decisions of the primary decision makers unless the applicant can identify errors of law, procedural irregularity or unfairness or irrationality in their decisions or the decision-making process: see Nupur Mst v Director of Immigration [2018] HKCA 524.  Accordingly, it does not assist the applicant to merely assert that his claim is true, he has problems in his country and it is unsafe to return there.  Further, the complaint about the quality of the interpreter is a new ground that was not raised before the Board or the Judge.  It is not open to the applicant to raise this new ground on appeal.

19.  Secondly, contrary to the applicant’s assertion, the Judge had given careful consideration to the grounds advanced by the applicant and had given full reasons for rejecting them.  The applicant has provided no particulars to support his claim that there are many good reasons for his application which the Judge failed to find or consider. We have also examined the reasons given by the Judge, and do not discern any error or ground for disturbing his decision.                  

20.  Given that the applicant has not been able to demonstrate that his intended appeal has any prospect of success, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 27 July 2020.