RE DIL ISLAM HOWLADER

CAMP 102/2019

[2020] HKCA 226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 102 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1185/2018)

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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 K.W. Lung given on 16 April 2019 refusing to grant an extension of time for his application for leave 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 5 October 2015.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 4 February 2007 illegally and was arrested by the police on 11 February 2007.  He lodged a non-refoulement claim on 2 March 2009. 

3.  The applicant’s claim was based on threats from his neighbours in his hometown, who had a land dispute with the applicant’s family.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 form.

4.  By a Notice of Decision dated 5 December 2014 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 26 January 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After the hearings on 28 April 2015 and 13 May 2015, the Board dismissed the appeal on 5 October 2015 (“Board’s Decision”).  The Board’s Decision only covered the Director’s First Decision.  There had been no appeal against the Further Decision to the Board.

7.  At [39] of the Board’s Decision, the Board found that the applicant’s case was not supported by any other credible evidence and that little weight should be given to the applicant’s evidence.

The judge’s decision

8.  The applicant filed a Form 86 on 25 June 2018 which contained the following grounds for judicial review:

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

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

(3)  the Board’s Decision was unreasonable, irrational, or is a result of procedural errors or unfairness; and

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

9.  In his affirmation in support of the leave application dated 25 June 2018, the applicant advanced the following complaints:

(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)  he was confused at the appeal hearing;

(4)  there was substantial delay between the lodging of torture claim on 2 March 2009 and the Director’s First Decision dated 5 December 2014 (§8);

(5)  the Board had not done sufficient research in the Country of Origin Information and his knowledge was not updated;

(6)  the Board had relied upon hearsay information and outdated material in relation to Country of Origin Information;

(7)  the Board had given undue weight to irrelevant material;

(8)  the Board failed to make proper inquiry into the situation in Bangladesh (§18);

(9)  the applicant was not legally represented at the appeal hearing;

(10)  the Board did not notify him by phone that the Board had rendered its decision; and

(11)  the Board should not have dealt with BOR2 risk without it being first considered by the Director.

10.  The Form 86 was filed about 2 years and 8 months after the Board’s Decision and about 16 months from the Further Decision, which was well outside the 3-month time limit for applying for leave for judicial review.

11.  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 extend time for applying for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [20] of the CALL-1 form:

“12. Upon his request, the applicant appeared before me. He confirmed that he had no complaint against the Immigration officer, the interpreters and the Adjudicator respectively. He was simply not satisfied that his claim was rejected. Those grounds above were prepared by his friend. However, his application is out of time, the Board’s Decision being dated 5 October 2015. The applicant has not taken out an application for extension of time. I have to consider whether time should be extended. Having considered the merits of the case, I refuse to grant him the extension of time. My reasons follow.

13. It is obvious that the Board had turned down the applicant’s appeal because the Adjudicator did not believe the applicant’s story. The applicant therefore has no factual basis in support of his claim.

14. Grounds (1) to (4), (6) and (9) are either irrelevant or they are just the applicant’s opinion or comment, unsubstantiated by any evidence.

15. As to ground (5), the Adjudicator was entitled to consider the past experience to assess the possibility of future torture. This ground fails.

16. As to the allegation that the Board had relied on the source of news which was not officially recognized or it is simply hearsay, under section 18 of Schedule 1A of the Ordinance, the Board may consider the same evidence that was before the immigration officer. The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (‘the Ordinance’). The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187. The applicant has not set out any reason why he considers that the information is unreliable. The Adjudicator was entitled to decide what evidence should be admitted and considered for the assessment of the applicant’s case. Grounds (7) and (8) fail.

17. The applicant had not raised the issue of his mental capacity or problem at the hearing. He cannot complain that the Adjudicator had not called for the psychological or the psychiatric report. Ground (10) fails.

18. 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.’ Ground (11) fails too.

19. The applicant failed to show that his proposed judicial review has any reasonable chance of success.

CONCLUSION

20.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him extension of time for his application for leave for judicial review. Accordingly, I dismiss his application.”

Application for leave to appeal and grounds for appeal

12.  By a summons dated 24 April 2019, the applicant sought leave to appeal against the refusal to extend time to bring his judicial review proceedings.  His application was dismissed by the judge on 24 May 2019.

13.  By a summons dated 27 May 2019 and the affirmation of the same date, the applicant renewed his application for leave to appeal before this court.  He stated in his summons that he did not receive the sealed order, CALL-1 form and judgment within 14 days from the day these were issued due to them being lost in post.  He claimed that he only got the documents after searching the court file. 

14.  In his skeleton submissions dated 6 June 2019, the applicant submitted that the Board acted in a procedurally unfair manner without properly assessing the credibility of the applicant, and failed to meet the high standard of fairness.  The applicant also referred to a number of cases and a section of the Immigration Ordinance without explaining how they are relevant to his intended appeal.

Discussion

15.  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.

16.  As we have noted, in the summons and affirmation dated 27 May 2019, the applicant claimed that he did not receive the CALL-1 form by post.  This is odd, as the CALL-1 form was mailed on 16 April 2019 to his address in Yuen Long and the applicant had in fact lodged his application for leave to appeal before the judge within time and he was able to obtain a copy of the relevant documents.  Leave to appeal was needed not because the appeal was out of time, but because it was against an interlocutory decision not to extend time for bringing the judicial review.

17.  In any event, the only ground of appeal set out in the skeleton submissions complains of errors on the part of the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

18.  We therefore do not see any prospect of success in the intended appeal, and will not grant extension of time for a hopeless appeal.  The summons of 27 May 2019 is dismissed accordingly.

19.  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.