RE ALAN SAFIQUL ISLAM

CAMP 344/2022, [2023] HKCA 552

On Appeal From [2021] HKCFI 1341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 344 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2237/2018)

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J U D G M E N T

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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 To (“the Judge”) dated 11 May 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 17 August 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 29 May 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 20 July 2014, and subsequently surrendered himself to the Immigration Department on 11 August 2014.  On 24 September 2014, he lodged a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by his creditors.  The details of the applicant’s claim have been summarised by the Judge at [5] to [14] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 29 May 2017, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 19 April 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing the appeal, the Board found on the evidence that the applicant’s alleged fear or the risk of harm against him was far-fetched and fanciful.  In any event, suitable options of internal relocation were available to him.

The Judge’s decision

6.  The applicant filed a Form 86 on 15 October 2018 seeking to judicially review the Board’s Decision, without setting out any grounds of review.

7.  In his supporting affirmation, he stated that he required time to submit “supporting document[s]” and that his life would be in danger if he returned to Bangladesh.

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 [20] to [24] of the CALL‑1 Form:

“20.  In his affirmation filed in support of his application the Applicant advanced two grounds for his application.  First, he asserted that he needed time to submit supporting documents but the immigration officer disregarded his request. Second, he alleged that his life would be in danger because of threats from his enemies.

21.  At the hearing, the Court ascertained from the Applicant what documents he would have submitted.  He confirmed that the documents were contracts relating to his brick production.  Those documents would support his case of having contracted with Suman and Nasir about producing bricks, the production targets, labour costs, etc.  However, as the Board proceeded on the basis that what the Applicant asserted were all true, those contracts are unnecessary and would not have advanced his case any further.

22.  As for his second ground, it is in effect a challenge of the Board’s finding of facts that he would not face any real risk of harm if he were refouled to Bangladesh.  The role of the Court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration.

23.  Though the Board did not find the Applicant credible, it nevertheless proceeded on the basis of the entirety of his evidence.  An applicant has to prove not only that his fears and risks are genuine, but also they fall within the criteria set out under the four applicable grounds. On the basis of his evidence, the Board was not satisfied that the Applicant has proved his fears and risks are genuine and that those fears and risks fall within the criteria.  It found that the Applicant had failed to discharge the burden of proving his fears and risks and his entitlement to non-refoulement protection on all applicable grounds.   The Board gave reasons for its Decision.   These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.

24.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.”

The present application for extension of time to appeal

9.  The applicant’s address stated in his Form 86 was at Chun Yin Square, Yuen Long.  On 29 January 2020, the Immigration Department informed the court that the applicant’s updated address was at Yuen Long On Ning Road, Yuen Long (“the Address”).

10.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 11 May 2021, and were not returned undelivered.

11.  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 11 May 2021. 

12.  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 Address.  In his supporting affirmation filed on the same date, he deposed that he “failed to appeal as [he] was in prison”.

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 24 August 2022[6].

14.  By a summons filed on 13 September 2022, the applicant renewed his application for an extension of time to appeal before this court, In the summons and his supporting affirmation filed on the same date, he stated that he did not agree with the decision of the High Court.

15.  In his written submissions lodged on 27 September 2022, the applicant repeated the dangers he would allegedly face should he return to Bangladesh, and alleged there were “many error[s] of process” in the determination of his non-refoulement claim.  However, no details of such alleged errors were provided.

Discussion

16.  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.

17.  As noted above, the Judge’s Decision was sent to the last known address of the applicant (which at the time, and at the time that the application for an extension of time was made, was the Address) and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

18.  As to the applicant’s explanation that he was allegedly remanded in prison such that he could not appeal in time, the applicant did not respond to the Judge’s direction for him to provide particulars of his detention (including the period(s) and reasons of such detention) (see [2] to [3] of the Judge’s decision dated 24 August 2022).

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

20.  We have however nonetheless proceeded to consider the merits of the intended appeal.

21.  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. 

22.  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.

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 13 September 2022 is accordingly dismissed.