RE HOSSAIN IKBAL

CAMP 107/2020

[2020] HKCA 1039

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 107 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1611 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Lung (“the Judge”) given on 18 July 2019[1] refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 19 June 2020.[2]

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

3.  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 summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 7 August 2018 dismissing his appeal against the decision the Director of Immigration (“the Director”) dated 6 December 2017 rejecting his non-refoulement claim.

5.  The applicant is a Bangladeshi national. He entered Hong Kong illegally and was arrested by the police on 14 April 2017. On 16 April 2017, the applicant raised a non-refoulement claim, which was set out in detail in the Director’s decision at [6] and the Board’s decision at [30] to [48].  In gist, the applicant feared he would be harmed or killed by members of the Awami League (“AL”) because he was an active member of Bangladesh Islami Chhatra Shibir (“CS”), which is a student wing of Bangladesh Jamaat-e-Islami.  AL was the ruling party while CS was popular among the people.  Members of AL armed with weapons would come to cause troubles at meetings and rallies held by CS.  This happened on two occasions in 2016.  The applicant was slapped on the first occasion while he suffered no injury on the second occasion.  Reports were made to the police but no action was taken.  In early 2017, AL members armed with guns came to the applicant’s land demanding him to stop cultivating the land and to pay extortion money.  When he refused, he was attacked during which he stabbed an AL member with a knife in self-defence.  He escaped and went into hiding.  Fearing for his personal safety, he left Bangladesh and eventually sneaked into Hong Kong.     

6.  By a decision dated 6 December 2017, the Director rejected the applicant’s claim on the torture risk[3], BOR 3 risk[4], persecution risk[5] and BOR 2 risk[6] grounds.

7.  The applicant’s appeal to the Board was heard on 19 April 2018.  By its decision dated 7 August 2018, the Board dismissed the appeal.  Primarily, the Board found the applicant’s evidence confusing and contradictory and differed significantly from the account he gave in the Non-refoulement Claim Form.  The Board found the applicant was not a witness of truth and his claim not credible.  The Board did not accept his claim about having problems with the AL members or the AL members were frantically looking for him to kill him.  The Board concluded there was no real risk of the applicant facing any of the prescribed forms of harm if refouled and that none of the applicable grounds was made out.    

8.  On 13 August 2018, the applicant filed a Form 86 together with a supporting affirmation.  He relied on a total of 14 grounds for seeking relief, which were summarised by the Judge at [10] of the Form CALL-1.  The Judge held an oral hearing to hear the application.

9.  The Judge considered the intended judicial review had no reasonable prospect of success and dismissed the application.  He set out his reasons in [11] to [20] of the Form CALL-1 as follows:

“11.  The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. But he is unhappy with their decisions. He also said that before the appeal hearing, he had the interpreter of the Board who explain the hearing bundle to him. He had no problem at the appeal hearing. I note that the time for him to understand the hearing bundle was very short. Having considered that he had no problem with the Adjudicator at the appeal hearing and that he said that his lawyer had explained the Director’s Decision before, I find that this factor should not cause any unfairness to the applicant.

12.  I had put the Board’s comments to the applicant and asked him if he had any comments on them. He said that he had no comments.

13.  As to the grounds above, as the applicant is an illiterate, it is obvious that his friend had helped him to prepare them.

14.  It is quite obvious that the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim. Those grounds above are quite irrelevant. Nevertheless, I shall deal with them.

15.  Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

16.  Grounds (4) to (9), (11) and (12) are his opinions without any evidence in support of them. They fail.

17.  Ground (10) fails as he did not refer those materials to the Adjudicator at the appeal hearing. They were not mentioned in the Board’s Decision. The applicant was unable to specify why those materials would support his claim.

18.  Ground (13) fails because the applicant had not even raised this issue with the Board.

19.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.” Ground (14) fails.

20.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

10.  The 14-day period for the applicant to appeal the decision of the Judge, as stipulated by Order 53, rule 3(4) of the Rules of the High Court, expired on 1 August 2019.  On 8 August 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  The Judge heard the application on 19 December 2019, and dismissed it on 19 June 2020.  

11.  Under Order 59 rule 2B(3) of the Rules of the High Court, the applicant may make a further application for leave to appeal to the Court of Appeal within 14 days from the date of the refusal of leave by the Judge.  When the applicant filed the present summons to apply to this Court for leave to appeal out of time on 28 July 2020, he was more than three weeks late.  Under Order 59 rule 2B(6) of the Rules of the High Court, this Court may extend the time for making the application for leave to appeal.

12.  In considering whether to extend the time for making an application for leave to appeal, the Court generally 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. 

13.  The applicant was late by one week when he filed the summons to extend time in the Court of First instance.  He was late by more than three weeks when he filed the present summons to renew his application for extension of time.  The applicant had given no explanation for the two delays.    

14.  As to the merits of the intended appeal, the applicant did not set out any proposed grounds of appeal in his summons and supporting affirmation.  He only stated in the summons that he did not agree with the Judge and the Judge did not show good cause for refusing his application.  In his written submission, he further complained that the Judge only copied the Board’s decision instead of picking up his points. He also claimed he was truthful but his points were ignored and he was not believed.  

15.  Assessment of credibility and the merits of the claim is a matter for the Director and the Board, who are the primary decision makers.  The Court’s focus on a judicial review application is the lawfulness and rationality of the primary decision makers’ decision and reasons and the fairness of the decision-making process. The Judge had looked at the Board’s decision and considered the applicant’s grounds for seeking relief.  For reasons that he gave in the Form CALL-1, the Judge considered there were no merits in the grounds put forward by the applicant. 

16.  We had examined the Board’s decision and the Judge’s decision and reasons.  We agree with the Judge that the grounds relied on by the applicant to seek relief were unarguable. Like the Judge, we also see no proper basis for interfering with the Board’s decision.  We are of the view that the applicant’s intended appeal has no reasonable prospect of success.

17.  Having regard to the unexplained delays and the lack of merits in the intended appeal, it would be futile to extend the time for the applicant to apply for leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 28 July 2020.