Re Shamim Miah

CAMP 145/2019

[2021] HKCA 366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 145 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 253 OF 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 8 September 2017 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 18 May 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 8 May 2015 and 26 October 2016 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh.  He last entered Hong Kong on 31 July 2005 as a visitor and was permitted to remain until 4 August 2005.  He overstayed and was arrested by the police on 13 December 2007. It was then discovered that he had previously entered Hong Kong using a different identity when he overstayed before returning to Bangladesh.  He lodged a non-refoulement claim on 26 February 2008.

3.The applicant’s claim has been summarised by the judge at [8] of the CALL-1 Form:

“8. To summarise the applicant’s claim, the basis of his fear is twofold. In the year 2000 he borrowed 3 million takas from three creditors to set up a bakery. It was a five-year loan with his home put up as collateral. The creditors were wealthy powerful members of the Bangladesh Nationalist Party (“BNP”) from his home area. His bakery was profitable until about September 2001. He closed his bakery in early 2002 which meant he was unable to repay the loan. He lives in fear of those three creditors. He also has a cousin called Omrahan who helped him ask the creditors for more time to repay his loan without any success. Not long after his cousin tried to help he was stabbed to death by many people the applicant believed to be linked to his creditors. As his cousin was a senior leader of the Awami League party (“AL”) some party members accused him of being responsible for his cousin’s death. He was afraid they would harm or kill him if he returned to Bangladesh.”

4.By a Notice of Decision dated 8 May 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 26 October 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 Board.  After a hearing on 9 November 2016, the Board dismissed the appeal on 18 May 2017 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.At [23] of the Board’s Decision, the Board found that part of the applicant’s evidence was not truthful and that he had not made out a case that needed non-refoulement protection.  The Board was also satisfied at [29] that state protection would be available for the applicant.

The judge’s decision

8.The applicant filed a Form 86 on 31 May 2017 which contained no ground for seeking relief.

9.In his affirmation dated 31 May 2017, the applicant advanced the following grounds for judicial review summarized below:

(1) 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;

(2) 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;

(3) 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;

(4) 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;

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

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

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

(8) 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 grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [23] to [30] of the CALL-1 Form:

“23. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully, logically and with caution. The applicant’s complaints in the affirmation against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

24. I found no substance in the grounds of this application. What was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.

25. Much was made in the affirmation of procedural impropriety, unfairness and irrationality in the adjudicator’s dealing with the COI conditions and material. As I said above, the adjudicator researched and analysed relevant, up-to-date and objective information and made full reference to it. I see no substance in this ground.

26. It is submitted the applicant was confused during the hearing and the process was unfair however an interpreter was arranged to assist him. Clearly the procedure was explained to him to his satisfaction because he said he had nothing to add and elected not to give evidence. Yet, in the affirmation he claims he gave answers to questions honestly which is misleading when he elected to remain silent.

27. There are many allegations not supported or substantiated in the grounds for example, the assigned duty lawyer failed the applicant in the hearing before the Director but there is no mention or complaint made to the adjudicator in the appeal hearing recorded in the decision.

28. It is suggested there is a procedural impropriety where the TCAB considers the BOR 2 risk without it first being screened or judged by the Director. This is also misleading when the Director’s decision dismissing the BOR 2 risk was dated 26 October 2016 and before the appeal hearing.

29. 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.

30. 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.”

Application for extension of time to appeal and grounds for appeal

11.Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A, the applicant had 14 days to lodge an appeal.  But he failed to do so.  By a summons dated 7 August 2018, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ Josiah Lam on 19 June 2019.

12.By a summons dated 26 June 2019, the applicant applied for leave to appeal against the decision by DHCJ Josiah Lam on 19 June 2019 before this court. 

13.In his affirmation of the same day filed in support of the application, the applicant deposed that:

“1. [DHCJ Josiah Lam] was wrong in law in holding that there was no state acquiescence or involvement.

2. [DHCJ Josiah Lam] failed to provide detailed reason in support of his decision.”

14.In his skeleton submissions dated 8 August 2019, the applicant submitted that:

(1) The Board failed to meet the high standard of fairness in its decision; and

(2) The Board failed to meet the minimum standards of procedural fairness.

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.The application to seek leave to appeal against the decision by DHCJ Josiah Lam is misconceived. The proper application for the applicant to make is a renewal before this court of his application for leave to appeal out of time against the judgment in the CALL-1 Form.  We have therefore treated the application in the summons dated 26 June 2019 as such.

17.Although the applicant has not given any reason for the delay in bringing the intended appeal in the documents filed in this court, we have considered the explanation given by the applicant for the delay, as summarized by DHCJ Josiah Lam in [20] – [21] of his decision.  Like the judge, we are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal. 

18.For the first ground in the summons concerning state acquiescence, this court has repeatedly held that an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  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 state acquiescence even if they had been raised before him, as the primary decision maker is the Board.  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.  This ground is not reasonably arguable.

19.The applicant did not provide any details for the ground concerning lack of reasons.  In any event, we have considered [23] – [30] of the CALL-1 Form where the judge addressed each of the ground for judicial review in detail.  This ground is therefore also not reasonably arguable.

20.The grounds raised in the written submissions complain against errors allegedly made by the part of the Director and the Board, but do not identify any error on the part of the judge.  They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

21.In consequence, 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 26 June 2019 is dismissed accordingly.

22.We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8) of the Rules of the High Court, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.

The applicant, acting in person