Re Joydul Miah

CAMP 189/2019

[2021] HKCA 373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 189 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 7 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 Li J given on 22 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 (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 19 December 2016 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 January 2015 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh.  He entered Hong Kong on 8 October 2005 as a visitor.  He overstayed and was arrested by the police on 13 December 2007.  He lodged a torture claim on 1 January 2008.

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 the judge at [1] to [3] of the CALL-1 Form.

4.By a Notice of Decision dated 30 January 2015 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.The applicant appealed to the Board.  After a hearing on 27 October 2015, the Board dismissed the appeal on 19 December 2016 (“the Board’s Decision”).

6.At [5] of the Board’s Decision, the Board found that the applicant’s case was not credible. The Board was also satisfied at [49] that state protection would be available for the applicant and at [41] that internal relocation would be viable.

The judge’s decision

7.The applicant filed a Form 86 on 6 January 2017 which contained 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; and

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

8.In his affirmation in support of the leave application dated 6 January 2017, the applicant advanced the following grounds for judicial review:

(1) the hearing bundle for the hearing before the Board was provided at a late stage.  Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2) the unfair hearing led the Board to wrongfully question his credibility; and

(3) the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for him to return.

9.The applicant also submitted a document during the hearing before the judge ([13] – [16] of the CALL-1 Form).

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 [17] to [18] of the CALL-1 Form:

“17. Given the above analysis, I agree with the findings of the Adjudicator. The story of the applicant was not credible. I do not find any error in law or in procedure. There is no public law ground in this application.

18. In my judgment, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. 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 did not do so.  By a summons dated 20 June 2019, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 26 July 2019.

12.By a summons dated 8 August 2019, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“I do not read and write English the judge ordered was English, nobody can help me set out this matter, and also I was no idea can possible to appeal so today I applying appeal CAMP.”

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

“This matter I receive right time my latter box but I don’t understand that judge Order and I never know Hong Kong Judicial Review law because I do not read and write English the judge order was English, set out this matter, and also I was no idea can possible to Court of appeal. I help one my friend he give me wrong information to have time 3 months but not yet, extensions for time against Court of Appeal CAMP”

14.In his skeleton submissions dated 28 August 2019, the applicant submitted:

(1) the judge failed to give adequate reasons and that the reasons given fell short of the rigorous examination and anxious scrutiny of the decision-making process;

(2) the judge failed to adequately address his ground based on “Peter evidence”;

(3) the judge failed to provide reasons as to the relevance or otherwise of the Country of Origin Information (COI) material;

(4) the judge failed to discharge its duty to comprehensively consider the lawfulness or fairness of decision-making; and

(5) the judge failed to apply the necessary scrutiny in relation to this risk as a political activist if he were returned to Bangladesh.

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 applicant claimed that the reasons for his delay is because he did not understand English.  Ignorance of the law on the part of the applicant is not generally a reasonable excuse for the delay.  We nonetheless go on to consider the merits of the intended appeal.

17.The applicant advanced a number of broad grounds against the judge’s decision without giving any particulars.  His submissions related to “Peter’s evidence” is incoherent and does not appear to be relevant to any of the documents he filed or the grounds advanced by him.  In our view, none of the above grounds is reasonably arguable.

18.The applicant also advanced a number of grounds against the Board in his submissions.  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.  We therefore did not consider any of the grounds against the Board.

19.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 summons of 8 August 2019 is dismissed accordingly.

20.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