RE ISLAM RAFIQUL

CAMP 506/2022, [2023] HKCA 1062

On an intended appeal from [2022] HKCFI 864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 506 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1701 OF 2019)

__________________________

__________________________

___________________

J U D G M E N T

___________________

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 24 March 2022[1] which dismissed his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and has also put in a written submission to support his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 5 June 2019 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 7 December 2018 which rejected his non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 43. He entered Hong Kong illegally and was arrested by the police on 8 October 2015. On 14 October 2015 he raised a non-refoulement claim based on fear of being harmed or killed by members of the Awami League (“AL”) as he was a supporter of the rivalry party, Bangladesh Nationalist Party (“BNP”). The details of the applicant’s claim were set out in the decision of the Director at [8] and summarised by the Judge in the Form CALL-1 at [2] to [5]. We will not repeat them.

6.  The Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds.

7.  The applicant appealed the Director’s decisions to the Board. The appeal was heard on 26 March 2016, during which the applicant gave evidence and answered questions from the Board. By its subsequent decision, the Board dismissed the appeal. In summary, on the totality of the evidence, the Board, while accepted the applicant was a general supporter of the BNP, did not accept he was an actual or perceived committed or active supporter, or a member or senior member, or an office-holder of the party. The Board also did not accept he had been targeted or subject to politically motivated threats or assaults, or had a political profile giving rise to a real risk of harm or death. The Board found that the applicant did not face a real chance of harm or death in Bangladesh in the reasonably foreseeable future, and concluded that he failed to substantiate his claim under any of the applicable grounds.

8.  On 20 June 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. The grounds of his intended challenge were summarised by the Judge in [10] of the Form CALL-1:

“(1) That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

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

(5) That the Board significantly relied on source of news that were not officially recognized or were simply hearsay or outdated resulted in the Board making groundless speculations that it would be safe for the Applicant to return to his home country; and

(6) That the hearing bundle was given to the Applicant just a few days before his appeal hearing with the majority of the documents in English thereby giving him insufficient time to prepare for his hearing especially due to his limited skills in English and being legally unrepresented which was procedurally unfair to him.”

9.  By another affirmation filed on 24 February 2022, the applicant requested to withdraw his application. The Judge dealt with both applications on paper. By a Form CALL-1 dated 24 March 2022, the Judge refused to give leave to apply for judicial review. He discussed the applicant’s grounds in [11] to [19] as follows:

“11. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner in dealing with his appeal, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or which COI were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby giving him insufficient time to prepare for his appeal.

14. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board, nor do I find this ground reasonably arguable either.

15. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on the credibility of any real risk of harm to him upon his return to his home country for the thorough and detailed analysis and reasoning set out in paragraphs 19 - 55 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16. The fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim which if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18. Furthermore, the Applicant recently on 24 February 2022 filed an affirmation requesting to withdraw his application because he has no problem in his home country that he wants to return to Bangladesh.

19. In the premises, and as I am for the reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that he no longer has any problem returning to his home country, I accordingly dismiss his leave application.”

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. The time for the applicant to do so expired on7 April 2022.

11.  By a summons filed on 12 July 2022, the applicant applied for an extension of time to appeal the Judge’s decision. He made an identical application by a second summons filed on 26 September 2022. The Judge listed the case for hearing on 12 October 2022 but the applicant did not attend. The Judge proceeded to deal with the application on the papers and by his decision handed down on 26 October 2022[6] refused to extend the time to appeal.

12.  On 1 December 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

13.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

14.  The applicant was more than three months late, which is a very substantial delay. The applicant explained in his supporting affirmations filed in the Court below and in the present application that he did not receive documents from the court and it was the immigration officer who told him about the Judge’s decision. The court record shows that the Form CALL-1 and the sealed order were sent to the address (“Yuen Long Address”) provided by the applicant his affirmation filed on 24 February 2022, and they had not been returned by the Post Office. This is also the address stated in the applicant’s affirmation in support of the time extension application and the second summons for time extension. However, we also note that this address is different from the address (“Fanling Address”) stated in the Form 86 and the affirmation in support, the first summons for extension of time to appeal filed on 12 July 2022 as well as the present summons and supporting affirmation. Further, two court letters sent to the Yuen Long Address in September and October 2022 had been returned for the reason that there was no such person. The applicant had not elaborated on why he had used two different addresses in the documents he filed with the court and whether the Yuen Long Road Address had ceased to be his address for service and if so when did this happen. Despite this, in light of the matters mentioned above, we are prepared to accept that it is possible that the applicant did not receive the Form CALL-1 and the court order. We will focus on the merits of the intended appeal, which is a more pertinent consideration.

15.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  The applicant did not provide any ground in support of his intended appeal in the summons. In the supporting affirmation, he stated that the Judge’s decision was reached unfairly without giving him an opportunity to clarify his case and situation in his country.

18.  The written submission cited extensively from judgments on the high standard of fairness and made the following arguments:

(1)  The decision has the effect of finally disposing of the applicant’s claim, making him liable to be removed and thus the high standard of fairness should apply.

(2)  The Board erred in approaching the matter by trying to see whether it could find fault with the Director’s decision.

(3)  The Board failed to consider the country conditions of the applicant’s country of origin.

(4)  Minimum standards of procedural fairness are required under common law.

19.  For the reasons set out below, we are of the view that the arguments put forward in the applicant’s affirmation and written submission do not amount to viable grounds of appeal:

(1)  The applicant did not request an oral hearing in either the Form 86 or his supporting affirmation. Under Order 53 rule 3(3) of the Rules of the High Court, the Judge is entitled to determine his application on paper without an oral hearing. Further, the applicant had by affirmation filed on 24 February 2022 requested to withdraw his application for judicial review for the reason that his problem at home had been solved. In the circumstances, the Judge cannot be faulted for determining his application on papers.

(2)  The applicant has not indicated how the legal propositions quoted in the written submission relate to his case. He had also not explained how the common law principle of procedural fairness may impact on his case.

(3)  There is no basis for the assertion that the Board’s approached the appeal by trying to see whether the Director’s decision could be faulted. It is evident from the Board’s decision that it had conducted a rehearing by considering and assessing afresh the applicant’s case, his evidence and credibility.

(4)  There is also no basis for the criticism that the Board did not consider the country condition. When assessing the applicant’s factual assertions, including his affiliation with the BNP and the problems he had with the AL people, the Board had given due regard to and had carefully considered the country of origin information.

20.  We have separately considered the Board’s decision. Like the Judge, we do not discern any error of law, irrationality or procedural irregularity or unfairness.

21.  In the circumstances, we agree with the Judge that the intended appeal against the Judge’s decision had no merits and that leave to apply for judicial review should be refused. This being the case, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 1 December 2022.