RE RASHEL BAPARI

CAMP 105/2018

[2018] HKCA 845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 105 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 804 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 11 July 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 8 June 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 13 October 2017 dismissing his appeal against the rejection of his non-refoulement claim by the Director of Immigration (“the Director”).

2.  Under Order 59 rule 2A and rule 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 29 December 2013. On 1 January 2014, he raised a non-refoulement claim based on his fear of being harmed or killed by Awami League (“AL”) due to his political affiliation with the Bangladesh Nationalist Party (“BNP”).

4.  The applicant’s case was detailed in the decisions of the Director and the Board, and summarized by the Judge at [2] to [5] of the Form CALL-1 dated 8 June 2018, [2018] HKCFI 1235.  In brief, the applicant joined the BNP in 2006, and was actively involved in putting up posters, distributing leaflets and attending rallies.  Between late 2006 and 2008, a number of violent conflicts broke out between the AL and BNP supporters, during which the applicant was attacked and injured.  Things quieted down in late 2008 with the AL becoming the ruling party.  Violent conflicts broke out again in 2012 when the BNP started organising rallies and protests against the AL.  The applicant took part in these activities and had received injuries. AL supporters also threatened to kill him.  Although reports were made, the police took no action.  In September 2013, after learning that a BNP member had been abducted and the AL people were looking for him, the applicant went into hiding and later left the country.   

5.  By a Notice of Decision dated 13 June 2016 and a Notice of Further Decision dated 12 June 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds, and the further decision was an assessment of the BOR 2 risk[4] ground.    

6.  The Board heard the applicant’s appeal against the Director’s decision on 14 August 2017.  By a decision dated 13 October 2017, the Board found that the applicant failed to make out a case under any of the applicable grounds and dismissed his appeal.  The Board’s full reasons were set out in [102] to [223] of its decision, which will not be repeated here.   

7.  On 25 October 2017, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  The applicant’s grounds for judicial review were:

(1) His claim had not been properly considered.

(2) He had not been given time to submit further documents in support of his claim. 

8.  On 8 June 2018, the Judge refused to grant leave and gave his reasons in [12] to [15] of the Form CALL-1:   

“12. In the absence of any particulars or specifics put forward by the applicant or any further elaboration by him, there is simply no substance at all in ground (1) to show in what way was his claim not properly considered by the Board. I do not find any merit in this complaint of the applicant.

13. As for his complaint under ground (2) of not being given time to submit further documents in support of his claim, I note that he did produce certain documents to the Board at his oral hearing, but there is no indication that he had requested for time to produce further documents. Even if he did, he did not subsequently up to the time of the Board’s decision some two months after the hearing produce any, nor did he do so even now in his leave application for judicial review before me. I do not find any merit in this ground of the applicant either.

14. 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.

15. 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.”

9.  The 14-day period[5] for the applicant to appeal the Judge’s decision expired on 22 June 2018.  On 11 July 2018, the applicant took out the present summons seeking leave to appeal out of time. 

10.  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). 

11.  The applicant was late by 19 days.  He explained that he received the Form CALL-1 late because the person who had the key to the letterbox was not in town at the time.  We are prepared to accept it. 

12.  We turn to consider the prospect of success of the intended appeal which is a crucial factor in determining whether the court’s discretion should be exercised in favour of extending the time to 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. 

13.  The applicant’s summons did not set out any proposed grounds of appeal.  In his supporting affirmation, the applicant gave an account of his personal background, his non-refoulement claim and his grounds for the intended judicial review of the Board’s decision.

14.  In his written submission lodged on 17 August 2018, the applicant gave the following grounds of appeal:

(1)   The Board failed to observe the high standards of fairness.  The appeal was by way of rehearing, hence the Board erred in approaching the appeal by asking whether there was fault in the Director’s decision.  The Board ought to have considered matters such as the conditions of the country of origin.

(2)   The Board failed to adhere to the minimum standards of procedural fairness and the duty to act fairly. 

15.  We note, firstly, that these challenges to the Board’s decision did not form any part of the grounds for judicial review and were not argued before the Judge.  Appeal is not an occasion for an applicant to put forward new grounds and to re-argue the leave application.  The focus of the Court of Appeal in an appeal is the correctness of the first instance judge’s decision and reasons.  It would therefore not be permissible for the applicant to advance these new grounds and arguments in the intended appeal. 

16.  Secondly, the applicant has not identified any error in the Judge’s decision and reasons.  He has not shown any proper basis upon which the Court of Appeal may interfere with the Judge’s decision.  We also do not discern any error in the Judge’s refusal of leave and the reasons he gave for the decision.    

17.  For the reasons stated above, we are of the view that the applicant’s intended appeal has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons.

18.  Since the 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.