RE HOSSAIN MOHAMMAD RAHAT

CAMP 225/2019

[2021] HKCA 375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 225 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 368 OF 2017)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 26 January 2018 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 23 June 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 17 March 2016 and 21 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 29 December 2013 illegally and was arrested by the police on the same day.   He lodged a claim for non-refoulement protection on 1 January 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 [2] to [7] of the CALL-1 Form.

4.  By a Notice of Decision dated 17 March 2016 (“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 21 April 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 Board.  After a hearing on 24 and 29 May 2017, the Board dismissed the appeal on 23 June 2017 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [63] of the Board’s Decision, the Board found that the applicant’s case was neither credible nor reliable.  The Board was also satisfied at [79] that state protection would be available for the applicant and at [95] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 6 July 2017 which contained no ground for seeking relief.

9.  The applicant filed an affirmation dated 6 July 2017 which contained the following grounds for judicial review:

(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) 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;

(6) 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;

(7) 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 Bangladesh;

(8) 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;

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

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

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

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

10.  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 grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [15] to [21] of the CALL-1 Form:

“15. I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. He analysed the material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

16. There are eight grounds in this affirmation and most contain no particulars. Those include grounds 5, 6, 7 and 8. As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. For ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation. These grounds have no merits.

17. In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator did not need to consider COI material as he rejected the applicant’s claim on credibility. Similarly, in ground 4, the adjudicator need not consider whether the State had exercised due diligence when the reality was the adjudicator had dismissed the appeal/petition because he did not accept the applicant’s evidence as credible. These grounds are not reasonably arguable.

18. The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him. He made an election to give evidence. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

19. There is a complaint the Director did not screen the BOR 2 risk before it was dealt with by the TCAB but clearly this allegation is incorrect when the Director’s decision rejecting the BOR 2 risk is dated [21] April 2017 and the appeal hearing dealing with the appeal of that BOR 2 risk claim was 24 & 29 May 2017; after the Director’s decision.

20. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

21. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, the applicant must lodge an appeal within 14 days but he did not do so.  By a summons dated 2 July 2019, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 30 August 2019.

12.  By a summons dated 9 September 2019, the applicant applied for leave to appeal against the judge’s decision on 30 August 2019 before this court.  In the affirmation filed on the same day, he deposed that:

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

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

13.  In his skeleton submissions dated 17 October 2019, the applicant submitted that:

(1) the Board failed to meet the high standard of fairness; and

(2) the decision-maker failed to meet the minimum standards of procedural fairness.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

15.  We first note that it is not necessary for the applicant to seek leave to appeal against the decision by the judge to refuse leave to appeal and that the proper application for the applicant to make is a renewal before this court of his application for leave to appeal out of time against the judgment in the CALL-1 Form.  We therefore treat the application in the summons dated 9 September 2019 as such.

16.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  In any event, we find no merits in the intended appeal.

17.  In relation to the ground based on state acquiescence, this court has repeatedly held that an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The judge would not be required himself to come to a view on state acquiescence if it had been raised before him, as the primary decision maker is the Board.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

18.  As for the complaint that the judge failed to give sufficient reasons, this ground has no particulars and is bound to fail.  Further, having examined the judgment in the CALL-1 Form in details, we are of the view that the judge has given adequate reasons.

19.  The grounds of appeal set out in the written submissions complain of errors on the part of the Director and the Board, but do not identify any error on the part of the judge.  They are therefore not viable grounds 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.

20.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 9 September 2019 is dismissed accordingly.

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