Re Bepary Mohammad Arshed

CAMP246/2019

[2021] HKCA 317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 246 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 171/2017)

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J U D G M E N T

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The Court:

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 26 January 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 (“Board”) dated 25 April 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 30 December 2015 and 1 November 2016 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh.  He entered Hong Kong on 8 November 2013 illegally and was arrested by the police on the same day.  He lodged a claim for non-refoulement protection on 11 November 2013. 

3.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 at [35] to [40] of the Board’s Decision and [3] to [5] of the CALL-1 Form.

4.By a Notice of Decision dated 30 December 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].

5.By a Notice of Further Decision dated 1 November 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 1 December 2016, the Board dismissed the appeal on 25 April 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.The Board found that the applicant unreliable and he made up some of his evidence as he went along. Though it was accepted that he took part in the rallies which resulted in clashes between the two political rival parties, the Board found that he was not a personal target. It concluded that there was no basis for finding that there is any real chance of the applicant being harmed if refouled. The Board was also satisfied that internal relocation would be viable.

The judge’s decision

8.The applicant filed a Form 86 on 2 May 2017 which contained no ground for seeking relief.

9.In his affirmation dated 2 May 2017, the applicant advanced the following grounds for judicial review:

(1)  the Board unlawfully fettered its discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness;

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

(5)  procedural impropriety/unfairness in the Board’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(6)  irrationality in the Board’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(7)  irrationality in the Board’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(8)  irrationality in the Board’s failure to analyze and assess whether state protection exists and misdirected itself as to the extended meaning of state protection;

(9)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(10)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(11)  procedural impropriety/unfairness by the Board in applying the incorrect standard of proof in its decision; and

(12)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

10.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 [15] to [22] of the CALL-1 Form:

“15. I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. He analysed the material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

16. There are eight grounds in this affirmation and most contain no particulars. Those include grounds 5, 6, 7 and 8. As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. Ground 6 complains of a failure to call for medical reports but it was never part of the applicant’s case which made such psychological or psychiatric evaluations necessary. These grounds have no merits.

17. In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator very fairly considered relevant and recent material that supported the applicant’s concerns and made a finding there was not sufficient state protection in the applicant’s local area if there was a real risk to him if refouled. These grounds are not arguable.

18. The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

19. There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is clearly mistaken because the Director rejected it on 1 November 2016 and the appeal hearing date was 1 December 2016.

20. There is complaint the applicant answered all the questions honestly and is aggravated that his credibility was found questionable. This submission makes no sense because this adjudicator found this applicant was probably a witness of truth. He did not find his credibility questionable.

21. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

11.On 9 January 2018 (before the CALL-1 Form of this case was handed down by the judge), the applicant filed another application for judicial review against the same decision by the Board in HCAL44/2018.  DHCJ Bruno Chan dismissed the second application on 26 July 2019 as an abuse of process.

Application for extension of time to appeal and grounds for appeal

12.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 5 August 2019 (which was more than one and half year after the decision by the judge), the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 4 October 2019.

13.By a summons dated 8 October 2019, the applicant applied for leave to appeal against the decision to refuse leave to appeal out of time dated 4 October 2019.  In his affirmation of the same day filed in support of the application, the applicant deposed that:

“1. [the judge] was wrong in law in holding that there was no state acquiescence or involvement.

2.  [the judge] failed to provide detailed reason in support of [her] decision”

14.In his submissions dated 15 November 2019, the applicant submitted that:

(1)  the Board failed to meet the high standard of fairness in that it had adopted a practice of not questioning the decisions of the Director, and had also failed to consider country of origin information; and

(2)  the Board failed to act fairly.

Discussion

15.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

16.In cases where (like the present case) the judge in the Court of First Instance refused to grant extension of time to appeal, the proper application for an applicant to make is to renew such application before this court instead of appealing against the refusal to grant extension of time: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104.  We therefore treat the application in the summons dated 9 October 2019 as a renewed application for extension of time to appeal.

17.As summarized by the judge at [5] to [7] in the decision dated 4 October 2019, the reason given by the applicant for the late commencement of the intended appeal was that he had lodged a second application for judicial review in HCAL44/2018. We agree with the judge that this is not a good explanation. The applicant cannot benefit from his abuse of the court’s process.  

18.In our view, the applicant has not provided any satisfactory explanation for his delay. The court will only grant extension of time if his appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re MA [2019] HKCA 1020.

19.State acquiescence was not a ground for seeking judicial review in the Court of First Instance. Hence, it is not surprising that the judge did not address the same.  In light of the Board’s finding on the lack of risk of harm, the Board was correct in holding at [64] of the Board’s Decision that acquiescence was not relevant since the AL did not go after the applicant personally.  

20.Having examined the judgment in the CALL-1 Form in details, we are of the view that the judge has given adequate reasons. The complaint of lack of reason has no merit.

21.The assertions in the submissions of 15 November 2019 are general and vague. The submissions did not engage with the reasons given by the judge in refusing to grant leave and failed to identify any error on the part of the judge.  As this court have often stated, an appeal is not a further opportunity to regurgitate what had been advanced but rejected in the court below. In an appeal to this court, it is necessary for the applicant to identify errors made by the judge. The submissions do not provide any viable grounds of appeal in this respect.

22.As we do not see any prospect of success in the intended appeal, we will not grant extension of time for a hopeless appeal.  The summons of 8 October 2019 is dismissed accordingly.

The applicant acting in person