RE ROVIN

CAMP 303/2022, [2023] HKCA 801

On appeal from [2022] HKCFI 485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 303 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1490 OF 2018)

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JUDGMENT

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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 Lung (“the Judge”) dated 17 February 2022[1] which dismissed his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and also lodged 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 and the applicant’s written submission, 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”) dismissing his appeal against two decisions of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 48. He made his first trip to Hong Kong on 3 October 2005 using the present identity. On 14 November 2005, he came to Hong Kong again using the present identity, but was refused permission to land. Subsequently in March, May, August and October 2006, he attempted to enter Hong Kong using different false identities, but was refused permission to land on all occasions. He eventually entered Hong Kong illegally and was arrested by the police on 29 May 2008. On 14 June 2008, the applicant lodged a torture claim[2] which was rejected on 17 November 2011. He did not appeal against the refusal. On 17 December 2013, the applicant lodged a non-refoulement claim, which he withdrew on 14 October 2014. At his request made on 20 April 2015, the Director re-opened his claim.

6.  The applicant’s claim is made on the basis that he would be harmed or killed by his father-in-law, who belongs to the Bangladesh Nationalist Party (“BNP”). According to the applicant, he was a supporter of the Awami League. He claimed that his father-in-law disapproved his daughter’s marriage to the applicant, and had filed a false report to the police that the applicant had murdered a BNP member. The details of the applicant’s claim were set out in the decision of the Director dated 2 September 2016 at [8]. We will not repeat them.

7.  By two decisions dated 2 September 2016 and 6 September 2017, the Director rejected the applicant’s claim. The first decision covered the BOR 3 risk[3] and persecution risk[4] grounds while the further decision related to the BOR 2 risk^[5] ground. There was no assessment under the torture risk ground in light of the previous rejection of the torture claim.

8.  The applicant appealed the Director’s decisions to the Board. The Board heard the appeal on 2 May 2018, during which the applicant elected not to give evidence. By its decision dated 20 July 2018, the Board dismissed the appeal. In gist, for the reasons given in [27] of its decision, the Board found the applicant’s evidence incapable of belief and that it could not be relied on. The Board further held that even accepting the applicant’s case, it did not meet the requirements of the applicable grounds. The Board also found state protection and internal relocation alternatives were reasonably available, which would negate or reduce any risks that the applicant might face. The Board therefore concluded that the applicant had failed to establish his entitlement to non-refoulement protection.

9.  On 27 July 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He did not provide any grounds for seeking relief.

10.  The Judge dealt with the application on paper. By a Form CALL-1 dated 17 February 2022, the Judge refused the application. He gave his reasons in [12] to [18] as follows:

“12. 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 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14. 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.’

15. The applicant had elected not to give evidence before the Board after hearing the adjudicator’s explanation of the hearing. The Board then assessed his case and disbelieved his evidence for the reasons of exaggeration, implausibility and his past conduct before the immigration officer. The adjudicator has not stated in the Board’s Decision that he had taken into account the fact the applicant refused to give evidence. However, I find that the Board is entitled to take into account the factor of him not giving evidence at the hearing as damaging the applicant’s credibility by virtue of section 37ZD(3) of the Ordinance.

16. The applicant has submitted no valid ground to assist his application. The Board clearly has given its reasons for rejecting his evidence. It assessed the individual grounds. His grounds are his comments and have no merits.

17. 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.

18. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

11.  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.

12.  By a summons filed on 31 May 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 6 July 2022[6] refused the application. Under Order 59 rule 14(3) of the Rules of the High Court, the applicant may within seven days from the Judge’s refusal make a renewed application to this Court for extension of time to appeal.

13.  On 16 August 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application. The summons was late by more than one month. The applicant has given no explanation for the delay.

14.  As to the renewed application, in considering whether to extend the 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.

15.  The applicant was more than 12 weeks late, which is a substantial delay. Both in the affirmation in support of the application for extension made to the Judge and in the present summons, the applicant said that he did not receive the Court’s decision and order. We note from the court record that the Form CALL-1 was sent to the applicant at an address in Temple Street, Yau Ma Tei. This address was provided by the Director as the address stated in the Form 86 and the accompanying affirmation was incomplete. This address is the same as that stated in the summons for extension of time and the present summons. The Form CALL-1 and the court order have not been returned by the Post Office. In the circumstances, we do not accept that the applicant has satisfactorily explained the delay. The applicant therefore has to show that his intended appeal has a real prospect of success.

16.  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].

17.  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.

18.  Apart from saying that he disagreed with the court’s decision and asking for an extension of time, the applicant has not provided any ground in support of his intended appeal in either the summons or the affirmation.

19.  In his written submission, the applicant stated that he left Bangladesh because his life was threatened, but nobody believed him. He also complained that the Judge found no error when there were many errors.

20.  What was stated in the written submissions do not constitute viable grounds of appeal. While the applicant claimed there were many errors, he did not elaborate or provide particulars of the errors. The applicant has also not identified any specific error in the Judge’s decision.

21.  We have separately considered the Board’s decision. We do not discern any error of law, irrationality or procedural irregularity or unfairness. We agree with the Judge that the intended judicial review has no prospect of success.

22.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success. This being the case, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 16 August 2022.