RE SUMON

CAMP 13/2019

[2019] HKCA 789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 13 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 926/2017)

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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 Bruno Chan given on 20 July 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/adjudicator of the Non-Refoulement Claims Petition Office dated 20 April 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 11 February 2015 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 10 April 2007 illegally and was arrested by the police on 16 June 2008.  He lodged a torture claim on 21 June 2008. 

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 [1] of the CALL-1 Form.

4.  By a Notice of Decision dated 11 February 2015 (“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.  The applicant appealed to the Torture Claims Appeal Board.  The Board dismissed the appeal on 20 April 2017 (“Board’s Decision”).

6.  At [21] of the Board’s Decision, the Board held that the applicant had not made out a case that he genuinely needed non-refoulement protection.  The Board was also satisfied at [26] that state protection would be available for the applicant and at [41] that internal relocation would be viable.

The previous JR application

7.  The applicant had previously unsuccessfully sought leave for judicial review in HCAL340/2017.  The background to that application was summarized at [4] – [6] of CALL-1 Form:

“4. On 28 June 2017 the applicant filed his Form 86 under HCAL 340/2017 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward 8 grounds for his intended challenge, and for which he requested for and was given an oral hearing on 5 September 2017 before Deputy Judge Woodcock, but again he was absent on that date without any explanation, and Deputy Judge Woodcock proceeded to consider his application on papers.

5. On 29 September 2017 Deputy Judge Woodcock did not find any of the applicant’s grounds to show any error of law by the Board or any evidence of procedural unfairness or any failure to apply high standard of fairness in the Board’s decision, and therefore refused leave to the applicant to apply for judicial review.

6.   It is relevant to also note that while it was not raised before the Director nor the Board, the learned judge in her decision also considered the applicant’s claim under BOR 2 risk and found on the facts before both the Director and the Board that he also failed to establish his claim under BOR 2 risk.”

The judge’s decision

8.  The applicant then filed a fresh Form 86 on 22 November 2017 in these proceedings which contained the following grounds for judicial review, summarised below:

(1)   the Board erred in not requiring that the hearing bundle be sent to the applicant within a reasonable time and arranging for interpretation of the same;

(2)   the Board was under a duty to act fairly; and

(3)   the Board failed to take into account the fact that the applicant was not legally represented.

9.  In the affirmation in support of the leave application dated 17 November 2017, the applicant explained that he did not know whether to attend the Board hearing or not because of the late provision of the bundle and the lack of legal representation.

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 give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [9] to [10] of the CALL-1 Form:

“9. Having carefully considered the decision of the learned judge, it is my firm view that the applicant would not have succeeded with his leave application even if he had included that ground in his application or argued it at the hearing, as other than his own bare assertion he did not even now produce any evidence such as the date of the letter which accompanied the hearing bundle or of the Director’s skeleton submission to show that it was indeed given to him only a few days before his oral hearing before the Board, and that even if it was indeed the case, the fact that he chose not to attend that hearing or made any request for further time thereafter, and that he was already well familiar with most of the documents in the bundle including his own Non-refoulement Claim Form, records of his screening interviews and the Director’s decision which were all available to him when he still had legal representation and long before his appeal hearing before the Board certainly would not have assisted him or advanced his case any further.

10.   As such it is clearly an abuse of the court process by the applicant in issuing his second application for judicial review after having been already refused leave by Deputy Judge Woodcock under HCAL 340/2017, and as the principle of res judicata applies, his application is therefore dismissed.”

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 8 August 2018, the applicant sought leave to appeal out of time. 

12.  In the affirmation dated 8 August 2018 in support of the extension of time application before the judge, the applicant gave an explanation for his delay:

“… the Order was made and served on me on 20th day of July 2017 but unfortunately I couldn’t get that letter on time. As I was applied for the Judicial Review leave while I was detained in the CIC and after my release from the CIC I didn’t write to the court about my residential address properly. I think this is the only reason I missed the judgment and the court order.”

13.  His application was dismissed by DHCJ Bruno Chan on 23 January 2019.

14.  By a summons dated 24 January 2019, the applicant renewed his application for an extension of time to appeal before this court.  The applicant did not give any ground of appeal in the summons.

15.  In his affirmation of the same date, the applicant stated that:

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

b.   [The judge] failed to provide detailed reason in support of [his] decision”

16.  The applicant lodged his written submissions on 27 February 2019.  The applicant referred to a number of cases on the high standard of fairness without explaining how they are relevant to the intended appeal.  He also identified 2 alleged errors by the Board, namely failure to treat his appeal to the Board as a rehearing, and failing to look into country of origin conditions.  Neither of these had been relied upon at first instance.

Discussion

17.  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.

18.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  The applicant is under a duty to supply the correct address for correspondence.  Further, he did not explain how he eventually came to know about the CALL-1 Form.

19.  We nonetheless go on to consider the merits of the intended appeal, the judge rejected the applicant’s application as an abuse of process, as it was his second application for judicial review, and no reason had been offered as to why he should be permitted to relitigate his application following the dismissal of HCAL 340/2017.  The applicant has not challenged this conclusion. For our part, we consider that the judge was entirely justified in dismissing the application on this ground.  For this reason alone, the intended appeal is bound to fail.

20.  In any event in relation to the first ground in the summons dated 24 January 2019, the applicant did not rely on state acquiescence or involvement in his application for judicial review.  The judge was therefore not required to consider it.  Further, as we have held in numerous decisions, an application for judicial review does not operate as a further appeal and the judge is not under a duty to come to a view on state acquiescence or involvement.  It is also not open to an applicant to rely on appeal, on a new ground not taken in the court below.

21.  As for the second ground in the summons dated 24 January 2019, the judge has given sufficient reasons at [9] – [10] of CALL-1 Form.  There is no merit in this ground.

22.  For the grounds raised in the written submissions, none of them is related to an error by the judge.  They are thus not viable grounds of appeal.

23.  For these reasons, we 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 24 January 2019 is dismissed accordingly.

24.  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.