RE LITON MD

CAMP 141/2023, [2024] HKCA 1146

On an intended appeal from [2022] HKCFI 2881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 141 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2516/2018)

____________________

____________________

___________________

J U D G M E N T

___________________

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 KW Lung (“the Judge”) dated 20 December 2022 refusing to extend time for the applicant to appeal against his decision dated 20 September 2022 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 24 October 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 27 September 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 as a visitor on 31 March 2006, but he overstayed and was arrested by the police on 2 May 2007.  Thereafter, he lodged a torture claim under Part VIIC of the Immigration Ordinance, Cap.115, which was subsequently withdrawn on 22 March 2013.

3.  The applicant then made a non-refoulement claim by way of a written signification dated 23 July 2013, which was assessed on all applicable grounds other than the torture risk[1].

4.  The applicant’s claim was based on a fear of being harmed or killed by his business partner and his creditors.  The details of the applicant’s claim have been summarised by the Judge at [4] to [6] of his decision (“the CALL-1 Form”)[2].

5.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

6.  The applicant appealed to the Board.  After a hearing on 20 September 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing the appeal, the Board found the evidence of the applicant to be wholly unreliable, and that there were “glaring contradictions” between material parts of his evidence at different points in time.  The Board found that the applicant’s claims of threat of harm, abduction and torture by his business associates and creditors had been fabricated (see Board’s Decision at [56]-[59]).  Accordingly, the applicant’s appeal was dismissed.

The Judge’s decision

7.  The applicant filed a Form 86 on 9 November 2018 (as amended by order of the Judge: see [3] of the Decision), seeking to judicially review the Board’s Decision.  He contended, without elaboration, that the decision to refuse his “torture claim” was unreasonable, as it had not been made “carefully” and that it was “[based] on assumption”.

8.  In his supporting affirmation, the applicant complained, inter alia, that “no lawyer was provided [to him] for advice”, that the Director and the Board “decided the case [based] on assumption”, and that the Board “fail[ed] to hear from [him]”.

9.  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 leave for the applicant to apply for judicial review.  The Judge gave the following reasons in refusing leave at [14] to [20] of the CALL‑1 Form:

“14.   The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1) …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

17.  The first ground in paragraph 13 above is his opinion only without any evidence in support. He had attended before the Board and given evidence. There is no valid reason to challenge the Board’s Decision.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The present application for extension of time to appeal

10.  The applicant’s last known address at the time of the Judge’s decision was at 185 Yee Kuk Street, Sham Shui Po (“the Address”). 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 20 September 2022, which 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 20 September 2022.

12.  The applicant thereafter took out a summons in the Court of First Instance on 14 November 2022 seeking extension of time to appeal, in which his address was stated to be at 78-84 Lai Chi Kok Road, Kowloon (“the New Address”).  In the summons and in his supporting affirmation filed on the same date, he claimed that he did not receive the CALL-1 Form from the court.

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 20 December 2022[6].

14.  By a summons filed on 3 April 2023, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant stated that he wished to appeal against the decision given by the Judge on 20 December 2022, being the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 20 September 2022. Although in the summons the applicant purported to seek leave to appeal against the decision of the Judge dated 20 December 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 20 September 2022, by which leave for judicial review was refused.

15.  In the summons and his supporting affirmation, the applicant asked this court to grant him an extension of time to appeal by reason that he allegedly “did not receive…[the CALL-1 Form]” within time due to it being “lost in post”.

16.  In breach of the directions made by the Registrar of Civil Appeals, the applicant lodged his written submissions late (by 9 days), on 26 April 2023.  Having regard to the relatively short delay, this court is prepared to consider those submissions, in which the applicant merely repeated the alleged risks he faced should he be refouled, as well as referring to the well-established principles in ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

Discussion

17.  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.

18.  As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Address, but was not returned undelivered.  The inference to be drawn is that the applicant has had notice and knowledge of the Judge’s orders and the contents of the CALL-1 Form in the period within which he was permitted to lodge an appeal.

19.  If the applicant had changed address to the New Address, it was incumbent upon him to notify the court of the change of address as soon as possible, but he did not do so.  The consequences of having failed to do so must lie with him.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has he explained when he had come to learn of the Judge’s decision.

20.  The applicant was out of time by 3 months in renewing his application for extension of time to appeal before this court.  The delay is substantial and thus the present application is liable to be dismissed on this basis alone.  However, we have 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.  We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

25.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his leave application by the Judge and in the processing of his non-refoulement claim.

26.  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 3 April 2023 is accordingly dismissed.