Re Zzaman Md Asadu

CAMP 455/2021

[2022] HKCA 478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 455 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 638 OF 2017)

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Before: Hon Cheung and Au JJA in Court

Date of Judgment: 31 March 2022

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.By a summons dated 15 October 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge Bruno Chan (“DHCJ Chan”) dated 7 October 2021 refusing the applicant’s application for extension of time to appeal ([2021] HKCFI 2954) (“EOT Decision”) against Deputy High Court Judge Woodcock’s (“DHCJ Woodcock”) earlier order dated 3 July 2018, in which DHCJ Woodcock refused his application for leave to apply for judicial review ([2018] HKCFI 1407) (“Leave Decision”).

2.The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 1 September 2017 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 27 November 2015 and 8 June 2017 rejecting his claim for non-refoulement protection (collectively referred as “the Director’s Decisions”).

3.Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.The applicant is a national of Bangladesh. He was arrested by the police for illegal remaining in Hong Kong on 1 October 2013 and was referred to the Immigration Department on 3 October 2013. On 5 October 2013, he lodged a non-refoulement on the basis that his life would be in danger if he returned to Bangladesh as he refused to quit Jamaat-e-Islami to join the Awami League Party. Details of the applicant’s claim were summarised by DHCJ Woodcock at [1] - [8] of the Leave Decision.

5.By a Notice of Decision dated 27 November 2015, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk^[1], BOR3 risk^[2] and persecution risk^[3]. By a Notice of Further Decision dated 8 June 2017, the Director rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[4].

6.The applicant then appealed against the Director’s Decisions to the Board. He attended and gave evidence at an oral hearing before the Board on 22 August 2017. The Board dismissed his appeal on 1 September 2017 and confirmed the Director’s Decisions. Having assessed the evidence, the Board considered that the applicant was not a credible witness and was not satisfied that the applicant would face persecution or any harm warranting non-refoulement protection if he returned to Bangladesh. The Board considered that the applicant failed to substantiate his case on all applicable grounds and accordingly, dismissed his appeal.

The Leave Decision

7.On 18 September 2017, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision. The applicant did not attend the oral hearing held on 8 February 2018.

8.By the Leave Decision, DHCJ Woodcock dismissed his application for leave to apply for judicial review for the following reasons:

“14. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. The adjudicator analysed the material, claim and evidence and validated his findings. The applicant’s complaints against him and the procedure undertaken are not made out. He puts forward three grounds and I find them all to be without merit and substance.

15. In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated. This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings. However, there is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle. Moreover, he made this application and affirmation in English which casts more doubt on this ground. I find no merit in this ground.

16. In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. Recently the Court of Appeal in Re Lakhwinder Singh [2018] HKCA 246 at (13) said that;

‘Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.’

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant. There are no proper grounds for interfering with such a finding. There is no merit in this ground.

17. The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date. However, there are no particulars supplied by the applicant to support this ground. What information he did consider relevant in spite of his finding against the applicant’s credibility, was clearly relevant, up-to-date and objective. I find no merit in this ground.

18. 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.

19. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17. I refuse leave to apply for judicial review.”

The EOT Decision

9.Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.

10.On 9 March 2020, the applicant filed a summons (“EOT Summons”) together with a supporting affirmation[5] for extension of time to appeal against the Leave Decision. By then, he was over 19 months late with his intended appeal. In the EOT Summons and his supporting affirmation, he gave no reason for his delay or any intended ground of appeal.

11.On 24 September 2021, the applicant attended an oral hearing for the EOT Summons before DHCJ Chan and was assisted by a Bengali interpreter. During the hearing, he alleged that he did not receive the Leave Decision in his mail as he was in prison in 2018 for two years, and upon his discharge from prison in January 2020, he was then transferred and detained at the Castle Peak Bay Immigration Centre where he was informed of the Leave Decision. By then, he was already out of time with his intended appeal.

12.By the EOT Decision, DHCJ Chan was not satisfied that the applicant had provided a good reason for his delay or any valid ground of appeal. In the absence of any error in the Leave Decision being properly identified by the applicant, there was no prospect of success in his intended appeal. As such, it would be futile to extend time for a hopeless appeal and his application for extension of time to appeal was refused.

The Present Application

13.By a summons and supporting affirmation both filed on 15 October 2021, the applicant applied for leave to appeal against the EOT Decision. In exhibit “A” to his supporting affirmation, he alleged that the EOT Decision “made [him] unhappy and irrational”; and that he was a genuine non-refoulement claimant who faced dangerous problems, harassment and torture in his home country and would be killed by his enemies if he had not run away.

14.Pursuant to the directions given by the Registrar of Civil Appeal dated 15 October 2021, the applicant lodged his written submissions on 29 October 2021. In his submissions, he contended that the Court was wrong in failing to apply principles of rationality and procedural fairness to the decisions and that the decisions were unreasonable. He further alleged that he would face hardships if returned to Bangladesh; that his problems were very severe in his home country and it would not be safe for him to return. He also contended that the Board failed to analyse and assess whether state protection existed in Bangladesh, and failed to evaluate and make a finding of fact as to whether there was a consistent pattern of gross and mass violation of human rights in Bangladesh. It is noted that these allegations are all general, vague and bare allegations without specific particulars or evidence in support.

Discussion

15.Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

17.We consider that the applicant’s delay of nearly 19 months is very substantial. As repeatedly emphasised by the Court, it is the duty of a litigant to give the Court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: see Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; and Re Ram Ishver Dass [2019] HKCA 27 at [16].

18.As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

19.The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

20.As a start, the contentions raised by the applicant in support of the present application are all vague, bare and general without any specific particulars or evidence in support. They do not constitute proper grounds of appeal and the intended appeal must fail on this basis alone.

21.Further, the applicant’s general and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal. As repeatedly emphasised by the Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: 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].

22.In any event, the applicant’s contentions are wholly without substance. We have reviewed both the Board’s Decision and the Leave Decision and the reasons the Board and DHCJ Woodcock gave for their decisions. In particular, the Board had considered in detail the Country of Origin materials and all the evidence before assessing and analysing the applicant’s credibility and whether his claim was substantiated.[6] Likewise, DHCJ Woodcock had also given detailed consideration to the applicant’s grounds of intended judicial review and the Board’s Decision. We agree with DHCJ Woodcock that there was no procedural unfairness or error of law or ground warranting any interference with the Board’s Decision by the Court by way of judicial review.

23.For the above reasons, the intended appeal has no prospect of success. It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 15 October 2021 dismissed.

The applicant acting in person