RE ZABAR SHIEKH

CAMP 452/2022, [2024] HKCA 286

On appeal from [2022] HKCFI 2216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 452 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1095/2019)

____________________

____________________

___________________

J U D G M E N T

___________________

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 KW Lung (“the Judge”) dated 20 October 2022[1] (“the EoT Decision”) refusing to extend time for the applicant to appeal against his decision dated 21 July 2022[2] (“the JR Decision”, as contained in “the CALL-1 Form” dated the same date) refusing to extend time for the applicant to apply for leave to apply for judicial review. As to the subject-matter of this application, see further [27] below.

2.  The applicant, had by a Form 86 filed out of time on 24 April 2019 (“the Form 86”), sought an extension of time to apply for leave to apply for judicial review (“the JR Application”) against (i) the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 25 January 2017 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 August 2015 (“the Director’s 1^st Decision”) rejecting the applicant’s non-refoulement claim; and (ii) the Director’s 1^st Decision itself.

3.  In his affirmation in support of the Form 86 also filed on 24 April 2019 (“the Affirmation”), the applicant, apart from setting out his grounds for judicial review, requested that an oral hearing be fixed for the determination of the JR Application.

Procedural background and the applicant’s right to an oral hearing

4.  O.53 r.3 of the Rules of the High Court (Cap.4A) (“the Rules”) sets out, inter alia, the applicable procedure for the determination of the JR Application.  Rule 3(3) provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant.” (emphasis added)

5.  Despite the applicant’s request for an oral hearing, according to the court’s records and contrary to the Judge’s mistaken belief (at [3] of the CALL-1 Form), the JR Application had not been listed or fixed for hearing.

6.  By a letter dated 18 March 2022 to the applicant, the Judge’s clerk informed him of the following:

“We refer to your application for leave to apply for judicial review of the Torture Claims Appeal Board’s Decision. You requested an oral hearing.

However, due to the COVID-19 pandemic, we will try to avoid attendance in court unless it is not possible to do so. Please submit your written submissions to court within 7 days from the date of this letter. However, if you are of the view that it is impossible to present your case on paper, you should inform the court immediately, stating the reasons. A hearing date will be fixed for you.

If the court does not receive response from you within 7 days from the date of this letter, the court will proceed to assess your case on paper.  A written decision will be sent to you at your last known address.”

7.  The applicant did not respond to that letter, and the Judge, purportedly invoking his discretionary and case management powers under O.1A r.1(b), O.1B r.1(1) and O.53 r.3(3) of the Rules, proceeded to determine the JR Application on the papers (see [5] of the CALL-1 Form).

8.  In this connection, this court has previously held that by reason of the clear wording of O.53 r.3(3) and the applicant’s express request for an oral hearing, it was not open for the Judge, nor could he invoke discretionary powers of the court, to determine the JR Application on the papers.  It is therefore arguable that the Judge had erred in law and fact in determining the JR Application without an oral hearing.  See Re Hossain Anowar [2023] HKCA 1361 at [10]-[11]; Re Mondal Sumitra Rani [2023] HKCA 1063 at [19]-[21]; and Re Pervin Jahanara [2023] HKCA 1064 at [20].

9.  It therefore follows that in exercising his discretion not to extend time for the applicant to apply for leave to apply for judicial review (as well as declining to grant such leave to the applicant) without an oral hearing, the Judge had arguably reached the JR Decision on an erroneous basis.

10.  In the premises, notwithstanding that applications of this kind (such as the present renewed application for extension of time to appeal) are usually determined by this court on the papers, by reason of the aforesaid special circumstances of this case, this court on its own motion directed that a hearing be fixed on 16 January 2024 in order that the applicant be afforded an opportunity to make oral submissions to this court in support of the present application, as well as to make submissions which he would have made to the Judge in the court below had a hearing for the determination of the JR Application been fixed pursuant to his request.

11.  By reason of the problematic basis on which the JR Decision was reached by the Judge, this court will, in determining the present application for extension of time to appeal, exercise afresh the court’s discretion with respect to the JR Application by its own examination and scrutiny of the Board’s Decision to determine whether leave to apply for judicial review and leave to so apply out of time should have been granted to the applicant by the Judge.

Background to the applicant’s non-refoulement claim

12.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on or about 5 February 2007, and was arrested by the police on 25 September 2007.  On 20 May 2008, the applicant lodged a torture claim, which was later treated as one of the applicable grounds for non-refoulement protection under the Unified Screening Mechanism. 

13.  The applicant’s claim was based on a fear of being harmed or killed by (i) members of the Awami League (“AL”) by reason of his alleged involvement in the murder of an AL leader; and (ii) family members of a woman named Hasina with whom he allegedly had an affair.  The details of the applicant’s claim have been summarised by the Judge at [6] to [10] of the CALL-1 Form. 

14.  By a Notice of Decision dated 19 August 2015 (i.e. the Director’s 1^st Decision), the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].  By a Notice of Further Decision dated 6 April 2017 (“the Director’s 2^nd Decision”), the Director also found against the applicant’s non-refoulement claim based on the BOR 2 risk^[6].

15.  The applicant appealed against the Director’s 1^st Decision (but not the Director’s 2^nd Decision) to the Board, for which an oral hearing was fixed on 23 March 2016.  The applicant appeared at the hearing in person.

16.  The Board made the following material findings of fact based on the evidence filed and the live evidence given by the applicant at the hearing:

(1)  As regards the alleged threat of harm from Hasina’s family members, in particular her cousins (see [43]-[48] of the Board’s Decision), the Board took the view that such risk of harm was low because:

(i)    although the applicant was arrested and assaulted by the police for allegedly failing to honour his marriage with Hasina, he was since released and the matter was clarified and settled (see [45]);

(ii)   despite Hasina and her family having filed apparently false and unfounded law suits against the applicant, these proceedings were either withdrawn (see [46]) or dismissed (see [48]);

(iii)  only one instance of assault on the applicant took place at the hands of Hasina’s family members in 1994, and they had since 1996 moved away from the applicant’s home village (see [47]);

(iv)  the applicant had moved to stay in Dhaka in 1996, and had since had no further confrontation with Hasina’s cousins;

(v)   the risk of harm from Hasina’s family members was localised, and there was no indication on the evidence that they have the resources to locate him in Bangladesh (see [48]);

(2)  As regards the alleged threat of harm from members of the AL (see [49]-[66] of the Board’s Decision), the Board likewise took the view that such risk of harm was low because, inter alia:

(i)    the applicant’s fear of being framed by the AL for the murder of one of its leaders, Ahsan, was unfounded, unreasonable or incredible because as a matter of fact other leaders of the AL (such as Nasir) had since 2004  persistently invited the applicant to join the AL (at [49]‑[52], [64]-[66]);

(ii)   assaults on the applicant by members of the AL were as a matter of fact unrelated to his supposed involvement in Ahsan’s murder (at [53]-[58]).

17.  Thus, the Board found that on the evidence, the applicant’s “feared ill-treatment [was] unlikely to materialise” (see Board’s Decision at [66]).  In any event, the Board took the view that state protection and suitable options of internal relocation were available to the applicant in order to lower the risk of harm, if any.  Specifically, the Board took into account the following matters:

(1)  the applicant did not report assaults and incidents of intimidation by AL members to the police, as he considered that “it was of no use to do so” (at [67]);

(2)  notwithstanding that there was objective Country of Origin Information (“COI”) which suggested that police corruption was not unheard of in Bangladesh, there was also COI which suggested that the Bangladesh government has made efforts to monitor conduct, and tackle misconduct, of the police (at [68]-[70]);

(3)  the law of Bangladesh permits internal relocation, and should the applicant relocate to a city such as Dhaka (the capital and largest city in Bangladesh), it would be very difficult for Hasina’s relatives or members of the AL to locate him (at [71]-[74]).

18.  The applicant’s appeal against the Director’s 1^st Decision was therefore dismissed by the Board’s decision dated 25 January 2017 (i.e. the Board’s Decision).

The Judge’s decision

19.  By the Form 86, the applicant sought to judicially review the Board’s and the Director’s Decisions, without setting out any grounds for review.

20.  In his supporting affirmation, apart from requesting that his application for leave to apply for judicial review be determined at an oral hearing, the applicant also set out his grounds for review, as summarised by the Judge at [18] of the CALL-1 Form, as follows:

“(1) He was not given legal advice as his duty lawyer had advised him that there was no merit in his case.

(2) The hearing bundle was not explained and the documents were not translated to him.

(3) The Board’s Decision was not translated to him.

(4)  He is unable to say whether the Board had given adequate reasons for its decision.”

21.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to extend time for the applicant to apply for leave for judicial review.  The Judge gave the following reasons in refusing to extend time at [19] to [29] of the CALL-1 Form:

“19.  As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merits of the applicant’s case.

20.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

22.  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.’

23.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

24.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803 at §18 held:

‘Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.’

25.  The first 3 grounds under paragraph 18 therefore fail. The 4^th ground has no substance.

26.  The applicant therefore has not raised any valid ground to challenge the Board’s Decision.

27.  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.

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

CONCLUSION

29.  I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review.  Accordingly, I dismiss his application.”

The present application for extension of time to appeal

22.  The applicant’s address as stated in his Form 86 was at 192 Tai Po Road, Sham Shui Po (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 21 July 2022, and were not returned undelivered.  

23.  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 21 July 2022.

24.  The applicant thereafter took out a summons in the Court of First Instance on 16 September 2022 seeking extension of time to appeal, in which his address was stated to be the Address.

25.  In the summons and his supporting affirmation filed on the same date, he claimed that he “did not get the High Court decision in time” and merely that he disagreed with it. 

26.  The applicant’s application to appeal against the JR Decision out of time was dismissed by the Judge on 20 October 2022 (i.e. the EoT Decision”).

27.  By a summons filed on 31 October 2022, 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 EoT Decision.  Although in his summons the applicant purported to appeal against the EoT Decision, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision, i.e. the JR Decision, by which leave for judicial review was refused.

28.  In his written submissions lodged on 23 November 2022, the applicant merely referred to the well-established principles in ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

29.  We acknowledge that the applicant had in his Form 86, under O.53 r.3(3) of the Rules, requested for an oral hearing before the Judge.  As we stated above, it was not open to the Judge to determine the leave application on the papers in these circumstances as he purported to do.

30.  This court therefore directed that an oral hearing be fixed for the present application as explained in [10] above.  The Board and the Director were excused from attendance at the hearing.

31.  We heard the application on 16 January 2024.  The applicant appeared in person at the hearing, and with the assistance of an interpreter, submitted that:

(1)  he unfortunately damaged his eye(s) / eyesight as a result of an accident in 2020;

(2)  he wished to lodge for the court’s consideration various documents pertaining to the medical diagnosis and treatments he had received for his eye(s).

Discussion

32.  As stated above, it was arguable that in the present circumstances the Judge had erred in law and fact in determining the applicant’s application for leave to apply for judicial review without an oral hearing.  We have therefore considered the applicant’s JR Application afresh.

33.  Notwithstanding the lack of an oral hearing before the Judge, the applicant was in any event afforded an opportunity to make submissions to this court at the hearing of the present application on 16 January 2024.

34.  In the Summons and affirmation filed on 31 October 2022, the applicant complained that he did not receive the CALL-1 Form in time, which had led to the delay in lodging his intended appeal.  In the written submissions lodged on 23 November 2022, the applicant (at p.2, [(4)]) referred generally to the principles related to, inter alia, “procedural fairness”, but did not rely on the lack of an oral hearing for the JR Application as an intended ground of appeal, nor did he therefore suggest how, if at all, the lack of an oral hearing in the court below had prejudiced or impacted in any way upon the fair determination of the JR Application.

35.  For the following reasons, we are of the view that despite the procedural irregularity, the present application for extension of time to appeal falls to be dismissed by reason that the intended appeal is wholly lacking in merits.

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

37.  There is no explanation on the part of the applicant as to how and when he had come to learn of the Judge’s decision dated 21 July 2022.

38.  In the circumstances, we reject the applicant’s explanation or reason for the delay in lodging the intended appeal.

39.  As to the substantive merits of the intended appeal, the applicant has not condescended to any or any sufficient 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 was, despite not having been afforded an opportunity to make oral submissions in the court below, rightly dismissed by the Judge. 

40.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

41.  Save for the apparent procedural error by the Judge (which we have dealt with above), the applicant has 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.  We have also subjected the Board’s Decision to anxious scrutiny and have found no reasonable basis for intervention.

42.  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.

43.  Nor are we persuaded by his complaint as to the apparent lack of language assistance, as he was clearly able (whether by himself or with the assistance of others) to lodge comprehensible English documents and submissions with the court and in the processing of his claim below.

44.  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 processing of his non-refoulement claim.

45.  In exercising afresh the court’s discretion, we are of the firm view that the applicant had failed to satisfy the threshold required for leave to apply for judicial review.  The JR Application was made out of time.   Due to its lack of merits, we would have refused to extend time for the applicant to apply for leave to apply for judicial review.  The JR Application was rightly dismissed.

46.  In the premises, there is clearly no prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 31 October 2022 is accordingly dismissed.