Re Islam Mohammad Shahidul

CAMP 190/2019

[2020] HKCA 326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 190 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1047 OF 2017)

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Before:  Hon Yeung VP and Pang JA in Court

Date of Judgment: 21 May 2020

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.By a summons filed on 9 August 2019, the applicant renewed his application for an extension of time to appeal against the decision given by Campbell-Moffat J (“the Judge”) on 30 April 2019 (“the Decision”) refusing to grant him leave to apply for judicial review.  The intended judicial review was against the decision of Torture Claims Appeal Board (“the Board”) dated 14 November 2017, in which the Board confirmed the decisions made by the Director of Immigration (“the Director”) on 4 July 2016 and 31 March 2017.

2.The applicant’s application for an extension of time to appeal was refused by the Judge on 16 July 2019.

3.Pursuant to the directions of the Registrar of Civil Appeals given on 12 August 2019 and 2 September 2019, the applicant should lodge his written submissions on or before 18 September 2019.  The applicant had failed to do so.  

4.Under Order 59 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.  Having considered the summons and the supporting affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.The applicant is a national of Bangladesh.  He came to Hong Kong illegally on 28 June 2014 and was arrested by the police on the same day.  He was then transferred to the Immigration Department for investigation.  On 1 July 2014, he lodged his non-refoulement claim by way of written representation.  

6.The applicant’s claim was based on his alleged fear that he would be harmed or even killed by members of Awami League (“AL”) if he were to return to Bangladesh due to a land dispute with members of AL.  The applicant claimed that he and his family were targeted by AL because they were associated with the opposing political party Bangladesh Nationalist Party (“BNP”).

7.By a Notice of Decision dated 4 July 2016, the Director decided against the applicant’s claim on BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 31 March 2017, the Director decided against him on his claim of BOR 2 risk.

8.The applicant appealed to the Board. After the hearing on 10 May 2017, the Board dismissed the applicant’s case on 14 November 2017. For the reasons stated in [44] to [59] of the Board’s decision, the applicant’s evidence was considered unconvincing and contradictory. The Board did not accept the land dispute was politically motivated and that the applicant had exaggerated his connection with BNP which he in fact only had little knowledge. Further, neither he nor his family had tried to reclaim the land in dispute and the applicant’s brother still lived in Bangladesh and stayed unharmed since 2014 and therefore the risk of harm was assessed to be minimal if he were to return to his home country. In any event, internal relocation would be a reasonable and viable option. The Board found that the applicant failed to establish his claims on all applicable grounds.

The Judge’s Decision

9.On 11 December 2017, the applicant filed his Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decision.   He did not provide any grounds of his intended challenge.

10.The Judge considered the application on paper and by her Decision of 30 April 2019, she considered the intended judicial review not reasonably arguable and had no realistic prospect of success.  The Judge refused to give leave to apply for judicial review and she gave her reasons at [11] of the CALL-1 Form:

“11. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of her determination, which was open to her on the facts and eminently reasonable.”

11.By a summon together with supporting affirmation dated 31 May 2019, the applicant sought leave to appeal against the Decision out of time, as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A) had expired on 14 May 2019.   The applicant did not provide any ground of his intended appeal for his application.

12.By the decision dated 16 July 2019, the applicant’s summons was dismissed.  At the hearing, the applicant apologised to the court for being late and explained that he had language difficulty which delayed his filing of the appeal.  The Judge noted from the court file that the court order was properly served upon the address provided by the applicant and the applicant confirmed there was no change of address.  The Judge found that the applicant was obliged to act within the prescribed time limit or he should bear the consequence of the delay.  The Judge went on to say that even if the court excused the delay, the applicant provided no ground of appeal but merely wished the court to consider his situation and let him stay in Hong Kong, and that there was no merit in his case.  In the absence of any valid ground to support his intended appeal, the Judge dismissed the summons accordingly.

The Renew Application

13.By the summons dated 9 August 2019, the applicant renewed the matter before us.  He did not provide any grounds of appeal in the summons or in his supporting affirmation.

Legal Principles

14.Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  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 respondent if an extension of time were granted.

15.Even if the court does not accept that an applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

16.In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

17.The applicant failed to provide any explanation for his delay in taking out the summons nor any ground of appeal to pinpoint any errors of law or procedural impropriety or irrationality of the Decision, thus the intended appeal is bound to fail. 

18.Further, the applicant’s case was rejected by the Board as he failed to prove his case on all applicable grounds and the Board did not find the applicant would be facing any real risk of harm if refouled.  We are satisfied that the Judge had carefully reviewed the Board’s decision and found nothing amiss from the Decision.

19.For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 9 August 2019 is dismissed accordingly.

20.We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.

The applicant, unrepresented, acted in person.