RE SIKDER IBRAHIM

CAMP141/2019

[2021] HKCA 5

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 141 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 939/2018)

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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 Deputy High Court Judge KW Lung given on 8 February 2019 refusing 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 dated 18 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 29 March 2017 and rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 26 December 2013 illegally and was arrested by the police on 7 February 2014.  He lodged a non-refoulement claim on 9 February 2014.

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [4] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 29 March 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 5 March 2018, the Board dismissed the appeal on 18 April 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [111] of the Board’s Decision, the Board observed that there was “a range of … problems with the [applicant’s] evidence”.  They concluded at [141] that the applicant was not at risk from any of the proscribed harm.

The judge’s decision

7.  The applicant filed a Form 86 on 25 May 2018 which contained the following grounds for judicial review, summarised below:

(1)     the Board unlawfully fettered its discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)     the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)     the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness;

(4)     the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)     the Board misdirected itself on the law by considering that the applicant has to experience torture in the past in order to establish substantial grounds for believing that a risk of torture exists;

(6)     procedural impropriety/unfairness in the Board’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(7)     irrationality in the Board’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(8)     irrationality in the Board’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;

(9)     irrationality in the Board’s failure to analyze and assess whether state protection exists and misdirected itself as to the extended meaning of state protection;

(10)   irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(11)   procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(12)   procedural impropriety/unfairness by the Board in applying the incorrect standard of proof in its decision; and

(13)   procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

8.  In his affirmation in support of the leave application, the applicant advanced the following grounds for judicial review which are summarised below:

(1)     the hearing bundle for the hearing before the Board was provided at a late stage.  Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2)     the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for him to return to Bangladesh; and

(3)     the Board gave its decision on BOR 2 risk before this claim was screened by the Director.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [24] of the CALL-1 Form:

“11. The applicant has set out his grounds in support of his application for leave for judicial review of the Board’s Decision. It is a 22-page statement in which he had set out many redundant and irrelevant substances such as the facts of his case, the Conventions, the Basic Law etc.

12. At the hearing, the applicant told me that his friend prepared the statement for him. He did not understand the contents of it, such as the Conventions or the Basic Law or the case law. However, he had signed his name on the statement. I shall endeavor to summarize the grounds below:

a. the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

b. the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

c. he was confused at the appeal hearing;

d. the Adjudicator was unfair and he had not given greater care to a self-represented claimant;

e. the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a risk of torture in future;

f. the Adjudicator had not done sufficient research in the Country of Origin Information and his knowledge was not updated;

g. the Adjudicator had relied upon hearsay information and outdated material in relation to Country of Origin Information;

h. the Adjudicator had given undue weight on the irrelevant material;

i. the Adjudicator was wrong in state protection in Bangladesh;

j. the Adjudicator had failed to call for psychological and psychiatric reports on the applicant; and

k. the applicant was not legally represented at the appeal hearing.

13. The applicant requested a hearing before the Court and he has appeared before me.

14. He said that those grounds above were written by his friend. He did not have much knowledge about them himself. He simply trusted his friend. He confirmed that he received the hearing bundle shortly before the appeal hearing. But he was able to get this friend to explain the contents to him. He was not confused when he attended the appeal hearing. He understood the questions put to him by the Adjudicator and he answered them fully. He confirmed that all his answers were true and correct.

15. What he said before me is clearly contradictory to those grounds above.

16. Even if those grounds were prepared by his friend on his behalf on the basis that he was not happy about the Board’s Decision, I consider that they are not substantiated.

17. The burden is on the applicant to set out the grounds in support of his application, such grounds have to bear substance, not just ‘putting forward a bare and flimsy assertion’ Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29

18. 12.d., f., g., h., i. are his opinions or comments. They do not constitute valid grounds to challenge the Board’s Decision.

19. 12. a., b, c are inconsistent with his own version in Court. They can be disregarded.

20. As to 12.e, the Adjudicator did not rely upon his past experience of torturing. The Adjudicator was entitled to consider his past experience to consider his allegation that he would be tortured if he was refouled back to Bangladesh. His allegation would be fortified by his past experience of torturing. It is a matter of weight that the Adjudicator would give to his allegation.

21. As to 12. J., the applicant had not raised the issue of his psychological or psychiatric in the screening process by the Immigration officer or before the Adjudicator. There is nothing amiss for the Board not to call for such reports.

22. As to 12.k., the Court of Appeal in Re: Ahmea 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. 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.’

23. I consider that the applicant has raised no reasonable ground in support of his judicial review.

CONCLUSION

24.    For the reasons above, I find that the application’s proposed application for judicial review of the Board’s Decision has no reasonable chance of success. I decline granting leave for the applicant’s proposed judicial review. Accordingly, I dismiss his application.”

Application for extension of time to appeal and grounds for appeal

10.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 25 February 2019, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ KW Lung on 6 June 2019.

11.  By a summons dated 24 June 2019, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, he referred to the affirmation filed on the same day for grounds of appeal.  In the affirmation, he deposed that:

“The [judge] was wrong in law in holding that there was no state acquiescence or involvement.

The [judge] failed to provide detailed reason in support of his decision.”

12.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 18 July 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

13.  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.

14.  The applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  However, the delay was a short one, and we shall therefore go on to consider the merits of the intended appeal.

15.  The ground based on state acquiescence has no merit.  The absence of state acquiescence formed no part of the judge’s reasons for declining to give leave to the application to bring judicial review proceedings.  The applicant did raise a ground for judicial review based on alleged lack of state protection, which was recognised by the judge at [12(i)] and [18] of the CALL-1 Form. However, that ground lacked particulars and was therefore bound to fail.  In any event, as this court has repeatedly held, an application for judicial review does not operate as a further appeal from the TCAB, and the judge would not have had to come to his own view on state acquiescence even if it had been properly raised before him.  The court can only interfere with the decision of the Board on public law grounds, but no such grounds were made out in the Form 86 or the documents filed for the intended appeal.

16.  Having considered the documents filed for the leave for judicial review application and the CALL-1 Form, we consider that the judge has given sufficient reasons for his decision at [11] – [24] of the CALL-1 Form.

17.  We therefore do not see any prospect of success in the intended appeal, and will not grant an extension of time for a hopeless appeal.  The summons of 24 June 2019 is dismissed accordingly.

18.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.