RE MD MONIR HOSSAIN

CAMP 8/2019
and CAMP 90/2019
[2020] HKCA 220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NOS 8 AND 90 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1068/2017)

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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 Bruno Chan given on 3 August 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 7 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 28 October 2015 and 20 February 2017 rejecting the applicant’s non-refoulement claim.

Background

1.  The applicant is a national of Bangladesh.  He entered Hong Kong on 16 October 2006 and was permitted to remain until 30 October 2006.  He overstayed and was arrested by the police on 24 July 2007.  He lodged a non-refoulement claim on 26 August 2008. 

2.  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 [2] to [4] of the CALL-1 Form.

3.  By a Notice of Decision dated 28 October 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].

4.  By a Notice of Further Decision dated 20 February 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 21 March 2017, the Board dismissed the appeal on 7 December 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [55] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [126] that state protection would be available for the applicant and at [146] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 13 December 2017 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 13 December 2017, the applicant advanced the following grounds for judicial review which are summarised below:

(1)  procedural impropriety in failing to consider the concept of extended state acquiescence in the consideration of his claim;

(2)  procedural impropriety in failing to conduct sufficient independent inquiries of relevant COI in the consideration of his claim;

(3)  procedural impropriety in failing to conduct critical analysis of relevant COI, for cherry-picking of COI and for failing to properly assessing the dangerous situations of rival political parties in Bangladesh; and

(4)  error/misdirection in law in failing to consider the psychological harm caused to the applicant by supporters of rival political parties in the consideration of his claim.  

9.  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 [11] to [14] of the CALL-1 form:

“11.  These are all just broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or how is the concept of extended state acquiescence relevant to his claim, or in what way did the Director or the adjudicator fail to conduct independent inquiries or analysis of relevant COI or of being selective or improperly rely on irrelevant COI. Having examined those COI listed and referred to by both the Director and the Board in their decisions, I do not find any basis or merits in these complaints of the applicant.

12.  It is clear that once it has been established by both the Director and the Board that it is not unreasonable or unsafe for the applicant to relocate to another part of Bangladesh, there is simply no justification for affording him non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

13.  In the premises and having proceeded to consider 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.

14.  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.”

10.  According to the court’s records, a copy of the CALL-1 form and the sealed copy of the deputy judge’s order were sent to the applicant on 3 August 2018.

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 16 January 2019, the applicant sought leave to appeal out of time to this court without first seeking leave from the judge (CAMP8/2019). 

12.  By a summons dated 30 January 2019, the applicant sought leave to appeal out of time in the court below.  His application was dismissed by DHCJ Bruno Chan on 7 May 2019.  By a summons dated 14 May 2019, the applicant renewed his application for an extension of time to appeal before this court (CAMP90/2019). 

13.  In his affirmation dated 16 January 2019 filed for CAMP8/2019, the applicant claimed that he did not receive the CALL-1 form “on time”.  He also claimed that his life will be in danger if refouled.  In his affirmation dated 14 May 2019 filed for CAMP90/2019, the applicant claimed that he did not appeal in time because of “almost delay”. 

14.  In his skeleton submission dated 19 June 2019 filed for CAMP8/2019, the applicant referred to a number of cases on the high standard of fairness without explaining how they are relevant to his intended appeal.

Discussion

15.  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.

16.  The applicant did not give any explanation as to why there was a delay in receiving the CALL-1 form.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

17.  The only ground of appeal advanced by the applicant is that his life will be in danger if he is refouled.  This bare assertion is not a valid ground of judicial review or a ground of appeal at all.

18.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summonses of 16 January 2019 and 14 May 2019 are dismissed accordingly.

19.  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.