RE MD MIR SHAFI MIAH

CAMP 88/2018

[2018] HKCA 886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 88 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 470 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  By summons filed on 19 June 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 30 April 2018 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 21 July 2017 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 6 January 2017 rejecting his non-refoulement claim on the BOR 2 risk ground.[1]

2.  Under Order 59 rules 2A and 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing, pursuant to Order 59 rule 2A(5)(a).

3.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally and was arrested by the police on 23 December 2007.  On 5 January 2008, he raised a non-refoulement claim based on his fear of being harmed or killed by his uncle arising out of their dispute over a piece of land left by the applicant’s deceased grandfather.

4.  By a decision dated 4 August 2014, the Director rejected the applicant’s claim having regard to the torture risk[2], the BOR 3 risk[3] and the persecution risk[4].  The applicant’s appeal to the Board was dismissed on 16 March 2015. 

5.  By a letter dated 16 December 2016, the Director invited the applicant to provide additional information relevant to a BOR 2 risk assessment.  Not having received any response from the applicant, the Director proceeded to make the BOR 2 risk assessment based on the materials previously submitted by the applicant in support of his non-refoulement claim. By a further decision dated 6 January 2017, the Director decided against the applicant.

6.  The applicant appealed the Director’s further decision to the Board.  Having considered the grounds of appeal and the available materials, the Board decided not to hold an oral hearing.  By its decision dated 21 July 2017, the Board dismissed the appeal.  In brief, the Board found there was no evidence of risk of capital punishment inflicted on the applicant by the Bangladesh government.  Nor was there risk of harm from the Bangladesh government such that the applicant’s life would be at risk if he were to be refouled.  The Board therefore concluded that the applicant failed to make out a case for the BOR 2 risk ground.

7.  On 31 July 2017, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the Board’s decision of 21 July 2017.  The Judge heard the leave application on 22 December 2017.  The Judge was of the view that the intended judicial review had no prospect of success and refused to give leave to apply for judicial review.  In [10] to [18] of the Form CALL-1 dated 30 April 2018, the Judge discussed the applicant’s grounds for judicial review and gave her reasons for rejecting them as follows:

“10. The applicant’s affirmation purports to contain eight grounds (page 23) and is the often seen, pro forma generic affirmation which contains no particulars and is usually applied to the decisions of all grounds but here only the BOR 2 ground decision is under scrutiny. Therefore, only paragraphs/grounds 1 to 10 on pages 25 to 26 which have been adapted to this generic affirmation are relevant to this application and this was confirmed by the applicant during the oral hearing.

11. The first ground is that it is unjust and unfair to not hold an oral hearing. I do not agree because it is not an automatic right and in a situation such as this, there would have been no necessity when there was no point of law, no issue of credibility nor any questions that require clarification. I am sure the adjudicator considered whether it was necessary and she reached the right decision and by that she maintained a high standard of fairness despite not conducting a second oral appeal hearing. There is no merit in this ground.

12. The second ground complains that the Director’s decision was in English and not in the applicant’s own language. He submits how could he write the appeal form so quickly but yet he does. There is no application for an extension of time. There is no merit in this ground.

13. There is a complaint there was no lawyer provided for him to appeal this decision. The applicant had a lawyer up until his case was dismissed by the Director. If his appeal had had merits, then the duty lawyer scheme would have continued to represent him. There is no absolute right to free legal representation at every step. There is no merit in this ground.

14. It is a further ground that there are insufficient reasons for rejecting the BOR 2 risk claim. The Director’s Notice of Further Decision clearly adopts and makes reference to his reasons in his previous decision which is full and in great detail. There is no merit in this ground.

15. Then there is this a complaint of out of date, hearsay source of news, the TCAB not telephoning the applicant with its ruling and an absurd suggestion that the TCAB dismissed the BOR 2 claim without the Director considering it first. All grounds are without merit.

16. Lastly the applicant has submitted a copy of a letter he wrote to the Immigration Department dated 20 January 2017 claiming protection under BOR 2 and the ground is that he is shocked and surprised that the Director can reject his claim on 6 January 2017 by his Notice of Further Direction before the applicant actually applied for protection. Even though this is ground is fooling nobody and really merits no explanation, I shall make it clear that the Director initiates the BOR 2 claim himself as a matter of policy.

17. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I have found the adjudicator’s decision to be without fault. The applicant’s grounds and complaints are not made out.

18. 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.” 

8.  The 14-day period[5] for the applicant to appeal from the decision of the Judge expired on 14 May 2018. On 19 June 2018, the applicant took out the present summons seeking leave to appeal out of time. 

9.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

10.  The applicant was late by one month.  He explained that he was unrepresented and was not aware of the time limit for lodging an appeal.  Since the delay was not substantial, we are prepared to accept it. 

11.  We turn to consider the prospect of success of the applicant’s intended appeal which is a crucial factor in determining whether the Court should exercise its discretion to grant an extension of time for appeal: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226. 

12.  The applicant’s summons and affirmation did not set out any proposed grounds of appeal.  His written submission dated 10 September 2018 advanced two grounds of appeal as follows:

(1)   The decision maker must observe the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289.  As the appeal to the Board was by way of rehearing, the Board erred in approaching the matter by asking whether it could fault the decision of the Director.  It was the practice of the Board not to question the Director’s decision.  Further, since the appeal was a rehearing, the Board ought to have considered the conditions of the applicant’s country of origin. 

(2)   The Board was a duty to act fairly and to observe the minimum standards of procedural fairness. 

13.  All the grounds put forward by the applicant are general statements directed at the decision of the Board.  The focus of an appeal to the Court of Appeal should be on the correctness of the first instance judge’s decision.  It is not an occasion to re-assess the applicant’s non-refoulement claim or to review the decision of the Board or the Director.  The Judge had given consideration to the applicant’s grounds for judicial review, which included complaints of unfairness against the Board’s decision not to hold an oral hearing and its dismissal of the appeal.  In the proposed grounds of appeal, the applicant has not identified any error in the Judge’s decision or reasons.  Nor has he indicated the basis upon which this Court might interfere with the Judge’s decision. 

14.  The applicant has failed to show that his intended appeal has prospect of success.  This being the case, it would be futile to grant him leave to appeal out of time.  Accordingly, we dismiss the summons.

15.  As the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.