Re Sardar Faruk

CAMP 133/2021

[2021] HKCA 1583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 133 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1990 OF 2018)

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Before: Hon G Lam and Chow JJA in Court

Date of Written Submissions: 30 June 2021

Date of Judgment: 29 October2021

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 22 June 2020[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 31 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 28 August 2017 rejecting the applicant’s non‑refoulement claim.

2.On 16 March 2021, the Judge refused to grant an extension of time for the applicant to appeal against the Judge’s decision of 22 June 2020.

Background

3.The applicant is a Bangladeshi national.  He was arrested by the police in Hong Kong on 7 July 2013 for illegally remaining here, and was transferred to the Castle Peak Bay Immigration Centre on 9 July 2013.  He raised his current non‑refoulement claim on 24 November 2015. 

4.The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by 3 specified members or supporters of the Awami League, because he had refused to stop working for and promoting Jamaat‑e‑Islami, a rival political party.  The factual background of his claim was set out at [22] to [23] of the Board decision.

5.By notice of decision dated 28 August 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

6.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 4 May 2018, during which the applicant gave testimony and answered questions from the Board.  The Board found that the applicant’s evidence was not truthful, due to his evasive manner in answering questions, and also due to the vagueness and lack of particulars and details in his factual account as well as material inconsistencies in his evidence. 

7.Nevertheless, the Board proceeded to determine the appeal on the assumption that the applicant’s factual account is true.  The Board found that based on the applicant’s evidence, the level of risk of harm was low.  The Board concluded there was no real risk of harm in the event of refoulement, and that in any event reasonable state protection was available and internal relocation was viable.  The Board dismissed the appeal in its decision dated 31 August 2018.

The Judge’s decisions in the court below

8.On 20 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation, the applicant raised a number of grounds for judicial review, summarized by the Judge at [10] of the Form CALL‑1.

9.Following a hearing on 3 January 2020 at which the applicant appeared before the Judge, on 22 June 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for refusing leave were set out in [10]‑[15] of the Form CALL‑1 as follows:

“ 10. On 20 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) procedural impropriety in that both the decisions of the Director and the Board are illegal committed with errors of law in dismissing his non‑refoulement claim and appeal;

(2) irrationality in the Board’s failure to take into account or putting proper weight on independent relevant COI in assessing the Applicant’s claim;

(3) irrationality in the failure of the Director and the Board to consider the concept of extended state acquiescence regarding state involvement in the Applicant’s case; and

(4) failure in the Director and the Board to properly consider the supporting documents submitted by the Applicant to properly consider that his claim is genuine that he would face a real risk upon being refouled.

11. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how was the concept of extended state acquiescence relevant to his case. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 29‑37 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

14. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. 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.”

10.More than 3 months later, on 29 September 2020, the applicant applied for an extension of time to appeal against the said decision of the Judge.  In the summons, he did not explain why he was late, nor did he raise any specific grounds of appeal; he merely stated that he disagreed with the Judge and that the Judge refused leave without making any comments and simply followed the Director’s decision.

11.The Judge heard the summons on 3 March 2021, on which the applicant did not appear.  In his decision dated 16 March 2021,[6] the Judge noted at [2] and [4] that the intended appeal was late by close to 3 months which was a substantial delay, for which the applicant gave no explanation.  The Judge was not satisfied that the applicant had any good reason for his delay.

12.The Judge also noted that the applicant did not provide any proper or valid draft or proposed ground of appeal, or any particulars of alleged errors in the decision, or why it might be reasonably argued that the decision was unfair or unreasonable.  The Judge did not see any reasonable prospect of success in the intended appeal, and dismissed the summons accordingly.

The renewed application before this Court

13.On 29 April 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 22 June 2020 refusing leave for judicial review.  In his summons and supporting affirmation, he stated that he did not get any letter in time to appeal, but did not set out any intended grounds of appeal.

14.The applicant lodged his written submissions on 30 June 2021.  In those submissions, he simply reiterated that he had a political problem in his country, and that his enemies were influential and empowered by the current government, and that if he returned to Bangladesh his enemies would kill him.  He stated that the Judge’s decision was incorrect because the Judge only read the Board’s decision but did not consider the applicant’s problem.

Legal principles

15.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 an extension of time is granted.  In considering whether to extend time, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

16.Even if the court does not accept that the applicant’s explanation for the delay is reasonable, it will still examine if the intended appeal has merits, in terms of whether there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge; see: Re Saqlain Muhammad [2018] HKCA 346. 

17.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.  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review. 

Discussion

18.In the present case, the applicant’s intended appeal was late by close to 3 months.  As the Judge concluded, the applicant had not provided any good excuse for the delay.

19.As mentioned above, the applicant did not set out any intended grounds of appeal in his summons, and in his submissions he did not provide particulars in support of his arguments or as to any specific alleged errors in the Judge’s decision, or identify any other potential grounds for reversing the Judge’s decision.  General assertions without particulars are not effective grounds to support a judicial review or an appeal against refusal of leave for judicial review.

20.As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as no such grounds have been advanced that point to any error by the Judge, the appeal should be dismissed.

21.In the present case, the Board rejected the applicant’s claim for non‑refoulement protection because it concluded that he had not suffered any severe pain and suffering and that there was no real risk of harm in the event of refoulement.  The Board also found in any event that reasonable state protection was available and internal relocation was viable.  These findings were open to the Board to make on the evidence.  The court will not interfere with such assessments unless they are vitiated on public law grounds, but the applicant has failed to advance any. 

22.The points raised in the applicant’s summons and submissions fail to engage with the Board’s reasons for rejecting his claim, as well as with the Judge’s reasons for refusing leave to apply for judicial review.  The applicant has failed to identify any specific error in the Judge’s decision.

23.Having considered the materials before us, we are of the view that the Judge’s observations are justified and that there is no reasonably arguable case for judicial review of the Board’s decision.  The judge was right to refuse leave.

24.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 29 April 2021 is dismissed accordingly.

The Applicant, unrepresented, acting in person

[1] [2020] HKCFI 1224, HCAL 1990/2018.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] [2021] HKCFI 595, HCAL 1990/2018.