RE MD JOHIRUL ISLAM

CAMP 141/2020

[2022] HKCA 1542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 141 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1750 OF 2018)

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J U D G M E N T

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

1.  By a summons filed on 24 August 2020, the applicant applied to this Court for “leave to appeal” against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 2 July 2020 ([2020] HKCFI 1381) (“the Leave to Appeal Decision”). By that order, the Deputy Judge refused leave to the applicant to appeal against his previous order dated 5 September 2019, by which the Deputy Judge refused to grant him extension of time and dismissed his application for leave to apply for judicial review ([2019] HKCFI 2189) (“the Leave Decision”).

2.  By the directions made by the Registrar of Civil Appeals dated 4 November 2020, in light of the decision of the Court of Final Appeal in H v Director of Immigration (2020) 23 HKCFAR 248 which held that an applicant did not need leave to appeal to the Court of Appeal against a refusal of extension of time to bring an application for leave to apply for judicial review; and that the time for the applicant to appeal against the Leave Decision had expired, the applicant was directed to seek an extension of time from the lower court against the Leave Decision.

3.  On 17 November 2020, the applicant applied for extension of time to appeal against the Leave Decision in the Court below.  By a decision dated 2 November 2021, the Deputy Judge also refused to grant extension of time for the applicant to appeal against the Leave Decision ([2021] HKCFI 3140) (“the EOT Decision”).

4.  In light of the above events, we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

5.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 16 May 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 31 October 2014 and 15 June 2017 rejecting his claim for non-refoulement protection (collectively referred as “the Director’s Decision”).

6.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

7.  The applicant is a national of Bangladesh.  He was arrested by the police for illegal remaining on 5 April 2008 and was referred to the Immigration Department on 7 April 2008, during which he claimed that he had illegally entered Hong Kong on 28 February 2007 from Shenzhen.  On 21 August 2008, he lodged a non-refoulement claim on the basis that he would be harmed or killed by his previous business partner and his men for his failure to give him money and that he would be arrested and harmed by the Rapid Action Battalion Force for his committed offence, if he returned to Bangladesh. Factual details of the applicant’s claim were summarised by the Deputy Judge at [2] ‑ [4] of the Leave Decision.

8.  By a Notice of Decision dated 31 October 2014, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR3 risk^[2] and persecution risk^[3].  By a Notice of Further Decision dated 15 June 2017, the Director further rejected the applicant’s non-refoulement on the ground of BOR2 risk[4].

9.  On 12 November 2014, the applicant appealed against the Director’s Decisions to the Board.  He attended various oral hearings before the Board respectively on 8 July 2016, 17 October 2017 and 11 December 2017.  The Board dismissed his appeal on 16 May 2018 and confirmed the Director’s Decisions.  Having assessed the evidence, the Board considered that the applicant’s claim lacked credibility and the Board was unable to attach any weight to the applicant’s evidence in relation to events which he claimed to have occurred before he arrived in Hong Kong. Taking the evidence as a whole, the Board considered that the applicant had failed to substantiate his case on all applicable grounds.  Accordingly, the Board dismissed his appeal.

The Leave Decision

10.  On 27 August 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  As summarised by the Deputy Judge at [11] of the Leave Decision, the following grounds were relied on by the applicant in his supporting affirmation:

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

(2)  the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3)  it was unfair for the BOR2 risk to be assessed without screening;

(4)  the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

(5)  the applicant was not legally represented before the Board, which was in breach of procedural fairness; and

(6)  the Director and the Board had reached the wrong decision.

11.  On 7 March 2019, the applicant attended an oral hearing held before the Deputy Judge and a Bengali interpreter was also present to provide language assistance.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:

“The Board’s Decision - out of time

12. Under Order 53, rule 4(1) RHC, the applicant has to take out his application for leave to make an application for judicial review within 3 months from the date when the grounds for the application first arose.

13. The applicant issued this application on 27 August 2018. He is out of time for 11 days as the Board’s Decision is dated 16 May 2017. In accordance with the decision of the Court of Appeal in Kwok Cheuk Kin v Leung Chun Yin [2018] HKCA 419, CACV 110/2017 and CACV 162/2017, 23 July 2018, his application cannot proceed without this Court granting him an extension of time. See §28.

14. The applicant has not made an application for extension of time. Nor had he given any good reason for this Court’s consideration.

15. The consideration of whether time should be extended for the applicant to take out this application should be the same as held by the Court of Appeal in Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 1 December 2018, namely, (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.

16. This Court considers that there is no reasonable chance of success for the intended appeal for the reasons below.

17. The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer explained to him. He understood the Board’s Decision as his friend helped him.

18. However, he said that he was not assigned the lawyer designated by him at the Duty Lawyer Office. He specifically asked for that lawyer because this lawyer had defended him in an ICAC case and he was acquitted. The Duty Lawyer Office said that the designated lawyer was too busy with other cases. However, on questions from this Court, he said that his lawyer had explained the case to him and he also explained the Director’s Decisions to him. He had no other complaint against his lawyer. It is trite law that the applicant does not have the absolute right to choose his own lawyer under the Duty Lawyer Scheme. Similar to other Legal Aid cases, the applicant had submitted himself to the administration of the Duty Lawyer Scheme. The Scheme would assign a competent lawyer for him. He has no right to designate a lawyer, say for example, a senior counsel for simple application. It is simply unreasonable. His right to his own lawyer refers to his lawyer at his own expense. The Scheme has a duty to protect the public fund from being abused. His complaint therefore has no substance.

19. It is quite obvious that the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim. Those grounds above are quite irrelevant. Nevertheless, I shall deal with them.

20. Grounds (1) and (2) fail as they are inconsistent with what the applicant said before this Court.

21. Grounds (4) and (6) are his opinion without any evidence in support of them. They fail.

22. Ground (3) fails because the Director could assess his BOR 2 risk without holding another interview under the law.

23. The Court of Appeal in Re: Ahmed 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 37. 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.’

24. Ground (5) fails.

25. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

26. Since the applicant’s application for judicial review has no reasonable prospect of success, I will not grant him an extension of time for his application for leave for the judicial review. Accordingly, I dismiss his application.”

12.  Thereafter, on 10 September 2019, the applicant applied for “leave to appeal” against the Leave Decision, which was refused by the Deputy Judge by the Leave to Appeal Decision on 2 July 2020.

13.  As stated previously, the applicant then applied to this Court by a summons filed on 24 August 2020 for “leave to appeal” against the Leave to Appeal Decision.  He was then directed by the Registrar of Civil Appeals on 4 November 2020 that he should instead take out an application for extension of time to appeal against the Leave Decision in the lower Court.

The EOT Decision

14.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

15.  On 17 November 2020, pursuant to the directions made by the Registrar of Civil Appeals dated 4 November 2020, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision (“the EOT Summons”).  By then, he was over a year late with his intended appeal.  In his supporting affirmation, he claimed that there were good grounds of appeal and that he was a genuine claimant who faced dangerous problems and harassment and torture in Bangladesh.  He further claimed that the Director and the Board had rejected his claim without proper inquiry and carefully understanding his situation.

16.  By the EOT Decision, the Deputy Judge refused his application for extension of time to appeal as the applicant failed to raise any valid ground identifying any error committed by the Board or the Deputy Judge in their decisions.  Accordingly, the Deputy Judge was of the view that there was no realistic prospect of success in his intended appeal against the Leave Decision and refused to extend time.

The Present Application

17.  As stated above, we will treat his summons and supporting affirmation filed on 24 August 2020 as a renewed application for extension of time to appeal against the Leave Decision.  In his supporting affirmation, the applicant relied on two purported grounds, namely that (a) the Deputy Judge was wrong in law in holding that there was no state acquiescence or involvement; and (b) that the Deputy Judge failed to provide detailed reason in support of his decision.

18.  Pursuant to the directions given by the Registrar of Civil Appeals on 2 December 2021, the applicant lodged his written submissions on 14 December 2021.  In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim.  The applicant further contended that the Board ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director’s decision.  He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.  More importantly, none of his submissions identified any error in the Leave Decision.

Discussion

19.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].  For present purpose, we will focus on the merit of the applicant’s intended appeal.

20.  In our view, his application plainly lack merit and must fail.  The arguments raised in his supporting affirmation are new grounds not raised before the Deputy Judge.  It is well established that this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Accordingly, we refuse to entertain his new grounds.

21.  In any event, it is clear from the Board’s Decision that the applicant’s non-refoulement claim was rejected by the Board given the lack of credibility of his claims.  In particular, the Board had thoroughly considered and assessed all the evidence put forward by the applicant including Country of Origin information.  It was after considering all the evidence and materials that the Board concluded that the applicant failed to substantiate his claim on all applicable grounds.  It is also clear from the Leave Decision that the Deputy Judge had provided detailed reasons in support of his decision.  Accordingly, there is plainly no merit in the applicant’s contentions.

22.  Further, the matters raised in his written submissions are all general and bare assertions and the applicant did not state how the legal propositions cited are relevant to his case.  He also failed to identify any error in the Leave Decision.  Accordingly, they are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

23.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  Accordingly, the applicant’s summons filed on 24 August 2020 is dismissed.