RE MITHU MOHAMMAD ABDUR RAZZAK

CAMP 5/2023, [2024] HKCA 256

On appeal from [2022] HKCFI 1945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 5 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2675/2018)

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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 DHCJ Bruno Chan (“the Judge”) dated 14 December 2022 refusing to extend time for the applicant to appeal against his decision dated 5 July 2022 refusing to grant 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 (“the Board”) dated 16 November 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 25 August 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 8 October 2015 and was arrested by the police on the same day.  Thereafter, he lodged a non-refoulement claim on 14 October 2015.

3.  The applicant’s claim was based on a fear of being killed or harmed by people of the Awami League (“the AL”).  The details of the applicant’s claim have been summarised by the Judge at [1] to [5] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board against the Director’s Decision.  After a hearing on 6 June 2018, the Board dismissed the applicant’s appeal by its Decision.  The Board took the view that there was no credible evidence to suggest that people from the AL would want to continue to pursue or harm him.  The applicant’s alleged risk of harm if he was refouled was therefore not made out on the evidence.  In any event, the Board decided that such risk of harm, if any, could be minimised or avoided by the applicant’s internal relocation within Bangladesh.

The Judge’s decision

6.  The applicant filed a Form 86 on 26 November 2018 seeking to judicially review the Board’s Decision, and set out the following grounds for review (as summarised by the Judge at [10] of the CALL‑1 Form):

“(1) Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) Procedural unfairness in the Board’s decision to refuse the Applicant’s appeal as unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) The Board significantly relied on source of news not officially recognized or were simply hearsay or outdated resulted in the Board making groundless speculations that it would be safe for the Applicant to return to his home country; and

(6) Procedural unfairness in the Applicant being provided with the hearing bundle just a few days before his appeal hearing before the Board with the majority of documents in English thus given him insufficient time to prepare for his appeal due to his limited skill in English and his inability to obtain interpretation or translation of those documents which led to an unfair hearing before the Board.”

7.  In his supporting affirmation, the applicant recited the procedural history of his claim, and repeated the apparent unfairness in the decisions made by the Director and the Board. 

8.  After summarising the facts and background of the case, and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [11] to [17] of the CALL‑1 Form:

“11. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or which COI that the Board relied on were unofficially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such, and as the Applicant also failed to attend the hearing of his application without explanation to elaborate on such grounds, I do not find any of them reasonably arguable for his intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

14. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, record of his screening interview and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board or that this ground is reasonably arguable for his intended challenge either.

15. Furthermore, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

16. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The present application for extension of time to appeal

9.  The applicant’s address at the time he filed the Form 86 was in Tuen Mun.  On 20 June 2019, he informed the court that he had moved to an address in Prince Edward, Kowloon (“the Prince Edward Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Prince Edward Address on 5 July 2022, and it was not returned undelivered.

10.  The applicant thereafter informed the court on 8 July 2022 that his updated address was in Sham Shui Po, Kowloon (“the SSP Address”).  A follow-up letter enclosing the CALL-1 Form was sent to the applicant at the SSP Address on 11 July 2022, and it was also not returned undelivered.

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 5 July 2022.

12.  The applicant thereafter took out a summons in the Court of First Instance on 4 August 2022 seeking extension of time to appeal, in which his address was stated to be yet another new address, which was at Mody Road, Tsim Sha Tsui (“the TST Address”).  He claimed that he did not receive the court’s letter “within reasonable period of time”.  In his supporting affirmation filed on the same date, he claimed that he did not receive the court’s letter enclosing the Judge’s decision “within 14 days”.

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 14 December 2022[6].

14.  By a summons filed on 5 January 2023, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant sought an extension of time to appeal against the decision given by the Judge on “14 Dec 2022”, being the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 5 July 2022.  Although in his summons the applicant purported to appeal against the decision of the Judge dated 14 December 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 5 July 2022, by which leave for judicial review was refused.

15.  In gist, the applicant in the summons contends that he only received a copy of the CALL-1 Form after “searching the court file”, and he did not receive the same within 14 days “from 14 Dec 2022”.

16.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions on or before 19 January 2023. He lodged his submissions late, on 20 January 2023.  The usual course taken by this court for a failure to comply with directions given by the Registrar would have been to deem the applicant to have abandoned his right to rely on written submissions, and that he be debarred from filing the same.  However, given the short delay of 1 day, we are prepared to consider his written submissions in the determination of the present summons, in which he made references to the well-established principles in, inter alia, ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and R v Home Secretary, ex parte Doody [1994] 1 AC 531 R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

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.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

18.  As noted above, the Judge’s decision was sent to the last known address of the applicant (which at the time was the Prince Edward Address) and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and that he has had knowledge of the Judge’s decision within the period which he was permitted to lodge the intended appeal.

19.  Upon the applicant’s update (namely that he had moved to the SSP Address), the court forwarded another copy of the CALL-1 Form to the SSP Address on 11 July 2022, which was also not returned in the post.  This was still comfortably within the 14-day period for the applicant to appeal, which was until 19 July 2022.

20.  It appears that the applicant had subsequently, on a date unknown and without updating the court, moved to the TST Address.  It was incumbent upon the applicant to notify this court of any changes to his correspondence address promptly, and he must bear the consequences of failing to do so.  In any event, the court may readily infer that the applicant has received the court’s letter sent to his SSP Address, if not the Prince Edward Address.

21.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay of around 2 weeks.  While the present application could be dismissed on this basis alone, we propose, in light of the relatively short delay, to focus on the merits of the intended appeal.

22.  The applicant has not in any event condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

23.  The applicant has also failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

24.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

25.  We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

26.  Further, the applicant’s complaint of prejudice by reason of his lack of proficiency in English is unfounded and of little or no merit.  We note that he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.

27.  Finally, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the in processing of his non-refoulement claim.

28.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 5 January 2023 is accordingly dismissed.