RE SARDAR MD MANIR

CAMP 92/2018

[2018] HKCA 648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO CAMP 92 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 492/2017)

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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 Judge Woodcock given on 7 June 2018 refusing leave 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 30 June 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 19 July 2016 and 28 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 5 February 2014 illegally and was arrested by the police on the same day.  After his arrest, he lodged a non-refoulement claim on 8 February 2014.

3.  The applicant’s claim was based on the threat from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [3] to [13] of the CALL-1 Form.

4.  By a Notice of Decision dated 19 July 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 28 February 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 a hearing on 15 May 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 30 June 2017 (“Board’s Decision”).

7.  At [6] of the Board’s Decision, the Board found that the applicant’s case was unreliable and dismissed his appeal on this basis.

The deputy judge’s decision

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

9.  In the affirmation in support of the leave application dated 8 August 2017, the applicant advanced various grounds for judicial review which are summarised below:

(1)   the Board failed to carry out sufficient research and inquiry into the Country of Origin Information (“COI”) and failed to have regard to relevant and up-to-date COI research;

(2)   the Board cherry-picked COI information and relied on outdated COI;

(3)   the Board failed to evaluate and make a finding as to whether Bangladesh shows a consistent pattern of violation of human rights;

(4)   the Board failed to analyse Bangladeshi state protection.  The Board misdirected itself on the law regarding the extended meaning of state protection;

(5)   the Board took into account incorrect facts and failed to give weight to facts favorable to the applicant;

(6)   the Board failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(7)   the Board applied incorrect standard of proof;

(8)   the duty lawyer failed at the first instance to give sufficient 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 paragraphs 18 to 25 of the CALL-1 form:

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

19. There are eight grounds in this affirmation and all contain no particulars. Grounds 5, 6, 7 and 8 contain no particulars. 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. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. In fact, the applicant was represented by the duty lawyer service in his appeal hearing by the same duty lawyer. This duty lawyer did not put forward any particulars of his own failings to the TCAB.

20. Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement. These grounds have no merits.

21. In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up to-date Country of Origin (‘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 because he found the applicant was not a genuine claimant and not at risk if refouled. It was also unnecessary to assess State acquiescence or whether Bangladesh had a consistent pattern of mass violation of human rights. These grounds are not arguable.

22. 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 a lawyer who would have protected his interests. There was an interpreter present to assist if the applicant had asked for assistance. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal. There is no merit in this ground when the applicant is legally represented.

23. There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 28 February 2017 which was long before the oral appeal hearing date of 15 May 2017.

24. 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.

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

11.  According to the court record, a copy of the CALL-1 form and the sealed copy of the deputy judge’s order were sent to the applicant on 7 June 2018.

Application for extension of time to appeal and grounds for appeal

12.  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 22 June 2018, he applied for an extension of time to appeal.  His application for extension of time is supported by an affirmation dated 22 June 2018.

13.  The applicant did not offer any explanation for the failure to lodge an appeal within 14 days.  In his affirmation dated 22 June 2018 he said that the judge was wrong in law in holding that there was no state acquiescence or involvement, and complained that the judge failed to provide detailed reasons in support of her decision. 

14.  In Exhibit A annexed to the affirmation dated 22 June 2018, he reiterated the 8 grounds of judicial review found in his affirmation dated 8 August 2017.   He also added a new ground based on misdirection of law which states that the Board misdirected itself by “taking into account that the Applicant and/or the other Applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future”

15.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 25 July 2018 requiring him to lodge skeleton submissions by 10 August 2018, the applicant was debarred from lodging any written submission and the application was dealt with on paper on the basis of the materials already filed before the court.  The applicant was notified of this by a letter from the court dated 10 September 2018.

Discussion

16.  The applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  Nonetheless, as the delay was relatively short (just over a week) we will consider the merits of the intended appeal.

17.  As to the merits of the intended appeal, we would not allow the applicant to rely on the new ground based on misdirection of law.  This ground was never canvassed at the Court of First Instance and is raised for the first time well outside the time limit for judicial review (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).

18.  The applicant claimed that the judge erred in holding that there was no state acquiescence.  He also argued that the judge failed to provide detailed reason in her decision.  The applicant failed to provide any particulars for those grounds.  Indeed, the grounds of judicial review summarised in paragraph 9 above do not actually refer to state acquiescence at all.  Further, as is clear from the CALL-1 form, the judge gave detailed reasons for her decision.  These grounds lack substance and are bound to fail.

19.  In Exhibit A, the applicant simply repeated the 8 grounds of judicial review before the judge.  These grounds are not directed at errors by the judge but at alleged errors by the Board.  The judge had already dismissed those grounds after careful consideration.  We do not see how the applicant can succeed on the intended appeal based on any of these grounds.

20.  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 22 June 2018 is dismissed accordingly.

21.  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.