NASIRUDDIN MIAH v. DIRECTOR OF IMMIGRATION

CAMP 63/2021

[2021] HKCA 1383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 63 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1421 OF 2018)

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JUDGMENT

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Hon Chow JA (giving the judgment of the Court):

INTRODUCTION

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Deputy Judge”) dated 2 June 2020 refusing to grant to the Applicant leave to apply for judicial review (“Leave Decision”).  An earlier application for extension of time to appeal was refused by the Deputy Judge on 14 January 2021 (“EOT Decision”).

2.  The Director of Immigration (“Director”) rejected the Applicant’s claim for non-refoulement protection on 28 March 2017.  The Applicant’s appeal against the Director’s decision to the Torture Claims Appeal　Board (“Board”) was　dismissed by the Board on 29 May 2018.

3.  Having considered the Applicant’s summons dated 24 February 2021, his affirmation dated 24 February 2021 and his written submission dated 2 June 2021, we are of the view that it is appropriate to determine the renewed application for extension of time to appeal without a hearing under Order 59, rule 14A of the Rules of the High Court.

BACKGROUND

4.  The Applicant is a national of Bangladesh.  He entered Hong Kong illegally on 15 June 2008 and was arrested by the police on 13 July 2008.  After he was referred to the Immigration Department for investigation, the Applicant raised a torture claim which was later taken as a non-refoulement claim.

5.  The Applicant’s claim was based on an alleged fear that if he were to return to Bangladesh, he would be harmed or killed by supporters of the Bangladesh Nationalist Party (“BNP”), as he had been a supporter of the rival Awami League (“AL”).  He claimed that he had been assaulted by BNP supporters, who had also accused him of crimes for which he was twice sentenced to imprisonment for a number of years.  He further claimed that he would be pursued by the police for false charges.  The factual details of the Applicants’ claim were summarized by the Deputy Judge in [2] to [9] of the CALL-1 Form ([2020] HKCFI 544).

DIRECTOR’S DECISIONS

6.  By a Notice of Decision dated 28 March 2017, the Director rejected the Applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR 2 risk[2], BOR 3 risk^[3], and persecution risk^[4].

7.  The Director found no substantial grounds for believing that there would be any real or substantial risk of harm from BNP supporters if the Applicant were to return to Bangladesh.  The Director considered that there was no reason for them to target the Applicant as he had stopped being involved in politics since 2002.  Further, having served his time in prison, there was no evidence that the police was still pursuing him.  The Director considered that state or police protection would be available to the Applicant, and that internal relocation was viable.

THE BOARD’S DECISION

8.  On 7 April 2017 the Applicant lodged an appeal to the Board against the Director’s decision.  He attended two hearings on 9 and 16 April 2018, and gave evidence and answered questions put to him by the Board.  On 29 May 2018 the Board dismissed his appeal.

9.  The Board found significant inconsistencies and discrepancies in the Applicant’s account of events prior to his departure from Bangladesh.  The Board did not accept the documentary evidence produced by the Applicant as genuine document(s) and rejected his case, including his alleged involvement in AL and his alleged fear of risk of harm from BNP supporters.  It concluded that there was no risk of harm if he were to return to Bangladesh.  His claim for non-refoulement protection was rejected on all applicable grounds.

THE LEAVE DECISION

10.  On 19 July 2018, the Applicant filed a Form 86 to apply for leave for judicial review of the decisions of the Director and the Board.  No ground of judicial review was given in the Form 86.  In a supporting affirmation also of 19 July 2018, the Applicant repeated the claim that his life was in danger in his home country, and that it would be a travesty of justice and contrary to natural law and spirit of common humanity and brotherhood to refuse his claim and evict him from Hong Kong, without providing any particulars or specifics.

11.  By the Leave Decision of 2 June 2020, the Deputy Judge refused to grant leave to apply for judicial review for the following reasons:-

“15. … 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 … 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 …

16. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility … and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Director or the Board.

17. Furthermore, the fact that it has been established by the Director in his decision 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong…

18. 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.

19. 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 EOT DECISION

12.  On 17 September 2020, the Applicant applied by summons for an extension of time to appeal against the Leave Decision, as he was out of time by 3 months.  The Deputy Judge refused to grant the Applicant extension of time to appeal by the EOT Decision.  He considered that a delay of 3 months was substantial, and rejected the Applicant’s explanation that he was not represented and needed time to find someone to help him.  The Deputy Judge went on to consider the merits of his appeal ([2021] HKCFI 17):

“6. More importantly, nor did he put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation, and at the hearing of his summons he merely repeated his claim that he still got problems in his home country and therefore he cannot go home yet. As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.

7. In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.”

RENEWED APPLICATION

13.  By summons dated 24 February 2021, the Applicant renewed his application to this Court for an extension of time to appeal against the Leave Decision.  He did not put forward any grounds in the summons or the supporting affirmation also of 24 February 2021.  In his written submission dated 2 June 2021, the Applicant repeated that he illegally entered Hong Kong to save his life, and asserted that the screening process of his non-refoulement claim was wrong, and the Leave Decision was “a funny decision, where total process is wrong but the high court did not find any procedural error”.

DISCUSSION

14.  As the Court of Appeal held in Farrukh Zaib [2020] HKCA 408, at [22] to [23], when 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 the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.  Even if an applicant’s explanation for delay is not accepted, the court would still examine if there is merit in the intended appeal.

15.  Given the 3 months’ delay and that the Applicant has been acting in person since 2017 when he lodged his appeal to the Board, the Deputy Judge was entitled to conclude that the delay was substantial and that being unrepresented in his circumstances was not a good or valid reason for the delay ([2021] HKCFI 17 at [4]-[5]).

16.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong (Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]).  An appeal is not an occasion for regurgitating arguments advanced and rejected by the judge.  The Applicant’s repetition that he illegally entered Hong Kong to save his life does not demonstrate any error by the Deputy Judge, and does not constitute a viable ground of appeal.

17.  As for the Applicant’s complaints about the screening process and the Leave Decision, these are general, vague and bare assertions without any particulars.  Such assertions likewise do not constitute viable grounds of appeal (Farrukh Zaib [2020] HKCA 408 at [28]; Re Mizan Sikder [2019] HKCA 20 at [17]). 

18.  As the Applicant has failed to identify any viable ground of appeal, extension of time to appeal is refused, and the summon of 24 February 2021 is dismissed.