RE AKBAR MD FAISHAL

CAMP 62/2018

[2018] HKCA 566

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 62 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 335 of 2017)

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JUDGMENT

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

1.  By summons filed on 11 May 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 29 March 2018 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 21 June 2017 dismissing his appeal against two decisions of the Director of Immigration (“the Director”) dated 15 June 2016 and 21 April 2017 rejecting his non-refoulement claim.

2.  On 14 May 2018, the Registrar of Civil Appeals directed the applicant to lodge his written submission in support of the application by 30 May 2018.  This was not complied with.  On 20 July 2018, the Registrar of Civil Appeals further ordered that unless the applicant lodged his written submission on or before 7 August 2018, he would be debarred from lodging any written submissions and his application shall be determined on the basis of the summons and the supporting affirmation.  The applicant had not filed any written submission despite the order.  Accordingly we have proceeded to consider his application on the basis of the materials before us.       

3.  The applicant is an Indian national.  He arrived in Hong Kong on 5 August 2015 and was permitted to remain as a visitor until 19 August 2015.  On 20 August 2015, he surrendered to the Immigration Department.  By way of a written representation dated 18 March 2016, the applicant made a non-refoulement protection claim.      

4.  The applicant’s claim is based on fear of harm by his creditor, who is an influential member of the Trinamool Congress Party, because he had failed to repay two loans of 1.5 million rupees each.  The facts of the applicant’s claim was succinctly set out by the Judge in [2] to [4] of CALL-1 Form.  It is not necessary to repeat them here.  

5.  The Director rejected his non-refoulement claim on 15 June 2016 having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3].  The applicant lodged an appeal against the Director’s decision to the Board on 28 June 2016.

6.  By letter dated 6 April 2017, the Director invited the applicant to submit additional information relevant to a BOR 2 claim[4]. The applicant did not respond to the invitation.  The Director proceeded to assess the applicant’s case under the BOR 2 risk ground on the basis of the information and materials that were previously submitted by the applicant.  By a further decision dated 21 April 2017, the Director decided against the applicant on the BOR 2 risk ground.  

7.  The Board heard the applicant’s appeal 26 April 2017. The Board considered the appeal on all applicable grounds, including BOR 2 risk.

For reasons given in [64] to [75] of the decision dated 21 June 2017, the Board concluded that the applicant’s evidence relating to his debt, the attacks upon him and the threats made against him in connection with the debt was not credible.  The Board found the applicant failed to establish a genuine or substantial risk of being subjected to harm, or a real risk to his right to life, or a real risk of torture or persecution. 

8.  The applicant filed his Form 86 on 28 June 2017 together with a supporting affirmation.  The two grounds put forward by the applicant to support the relief sought were:

(1)   There was insufficient time for him to prepare the appeal before the Board due to his limited English ability and his inability to pay for interpretation service.

(2)   The Board relied on Country of Origin Information (COI) that was not officially recognized or was simply hearsay or was lacking in credible sources, and consequently wrongly speculated that it was safe for him to return to India.   

9.  The Judge listed the application for an oral hearing on 6 March 2018.  The applicant failed to appear.  Having considered the papers filed by the applicant, the Judge refused to give leave to apply for judicial review.  The Judge gave his reasons at [13] to [19] of the CALL-1 Form dated 9 March 2018 as follows:

“13. For the first ground and according to his supporting affirmation of the same date, the applicant claims that for his hearing on 26 April 2017 before the Board, he was provided by the Director of the hearing bundle with documents all in English only six days before the hearing, thereby giving him insufficient time to prepare for the hearing due to his limited skills in English and being legally unrepresented.

14. His claim of not being able to hire an interpreter for the hearing is a non-starter as he was properly provided with a Hindi/English interpreter at the hearing during which he was able to address the Board through the interpreter without any difficulty or problem, and of which he never raised any issue with the adjudicator during the hearing.

15. As for being given the hearing bundle only six days prior to the hearing, this is what was recorded by the adjudicator in the Board’s decision about that matter at the hearing:

’13. The Applicant confirmed that he had received the Immigration Department’s letter dated 6 April 2017 and that he might have received the further decision. I explained their content and provided him with copies of those two letters at the beginning of the hearing.

14. His attention was drawn to his completed NCF and the record of interview with the Immigration Officer in the hearing bundle, which had each been translated to him at the time they were made and he confirmed that what he said in the NCF and interview was true.’

16. It therefore seems clear to me that it was not an issue at the hearing before the Board, as the applicant never made any complaint about insufficient time to prepare or asked for time or adjournment of that hearing. In any event, it seems to me that the applicant would have already been familiar with or at least have read most of the documents in that hearing bundle such as his interview records with the Immigration Officer, the Director’s earlier decision, evidently the letter dated 6 April 2017 from Immigration Department inviting him to submit additional facts, and whatever documents which he had earlier submitted, or even the further decision of the Director which it was stated that he might have also received.

17. As for the second ground, in the absence of any particulars or specifics provided by the applicant, it is simply impossible to see how the Board may have improperly relied on COI or which parts of them were based on hearsay or unreliable source. As the applicant’s claim is founded on the existence of a debt to AS arising out of his mobile phone business, and as the Board has clearly not been satisfied that he had such a business or incurred any such debt to AS in connection with it, and upon concluding that “nothing that the Applicant has said about his business, the loans from (AS) and the attacks upon him and the threats made against him in connection with the loans, can be given any credence”, and that “he is not a witness of truth …”, the Board therefore rejected his claim on all applicable grounds, and I see nothing wrong in law or procedure for the Board to deem it unnecessary to dwell on COI to assess that there would be no real risk whatsoever for the applicant to return to India.

18. In any event, in confirming the Director’s decisions the Board must have also agreed with his assessments of the applicant’s claim based on the objective COI before the Director, of which I have considered with rigorous examination and anxious scrutiny, and I am unable to see any basis or merit in this ground of the applicant either, or in general any error in law or procedure unfairness in either decisions of the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim.

19. In the premises and for the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

10.  The 14-day period for the applicant to appeal against the Judge’s decision ended on 12 April 2018[5]. On 11 May 2018, the applicant took out the present summons seeking leave to appeal out of time.

11.  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 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). 

12.  In this case, the applicant was late by one months, which is not insubstantial.  The applicant explained in his affirmation filed in this application that “the order of [the Judge] was not received in time due to postal delay since I do not stay in a conventional house”.  Although the applicant had not given particulars of what was exactly the cause of the delay and when did he receive the order, since the delay is not very serious, we are prepared to accept the explanation.

13.  We turn to assess the prospects of the intended appeal against the Judge’s decision, which is a crucial consideration in an application to extend time: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226. 

14.  Both in his summons and supporting affirmation, the applicant stated that he would face hardship if he were to return to his home country. He also said that the Board had significantly relied on the source of news which was not officially recognized, or was simply hearsay, and the Board had relied on some cases which are outdated considering the dramatic changes. It was said that the lack of credible source of information had resulted in the Board making groundless speculations.

15.  The ground of appeal that the applicant advanced in his summons and affirmation bears no relevance to the reasons given by the Board for its decision to dismiss the appeal.  As mentioned in [7] above, the Board’s decision was premised on its rejection of the applicant’s case as being incredible and unreliable.  The Board did not accept the applicant had made two loans in connection with his business, or he was pursued, attacked or threatened by an influential creditor.  The Board did not have to refer to, and it did not rely on, any COI.  Nor did it refer to any cases.

16.  We see no basis to interfere with the Judge’s reasons and his conclusion that the applicant’s intended judicial review was not reasonably arguable and has no realistic prospect of success.  There is no merit in the applicant’s intended appeal.

17.  As the intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time for appealing.  Accordingly, we refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.

18.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of High Court that the applicant may not request our determination to be reconsidered at an oral hearing.