RE SWAPON SHUBASH MAJUMDER

CAMP 59/2017

[2019] HKCA 1072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 59 OF 2017

(ON AN INTENDED APPEAL FROM HCAL 121/2017)

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J U D G M E N T

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Hon Lam Ag CJHC (giving the Judgment of the Court):

1.  On 18 January 2018, the Court (Cheung CJHC, as Cheung PJ then was, and Lam VP) handed down a judgment ([2018] HKCA 25) refusing to grant an extension of time for the applicant to appeal against the decision of Deputy High Court Judge Woodcock dated 15 September 2017 refusing leave to apply for judicial review.

2.  Over 1½ years later, the applicant filed a notice of motion on 25 July 2019 seeking leave to appeal to the Court of Final Appeal against the judgment.  In the notice, the applicant set out the background of his claim.  It was stated therein that it would be dangerous for him to return because of the current political situation in Bangladesh.  The applicant further submitted that the judge failed to consider the lawfulness or fairness of the Torture Claims Appeal Board’s (“the Board”) decision-making.

3.  In his affirmation filed on 25 July 2019, the applicant explained that the delay was due to his inability to write or read English, and the lack of financial resources to hire a lawyer to advise him. 

4.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, good and sufficient ground must be shown by the applicant before the court will exercise its discretion to grant an extension of time for him to do so, see: section 24(5) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”).  See also: Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another (unreported) CACV 191/2013, 29 January 2015.

5.  The delay of 1½ years in seeking leave to appeal to the Court of Final Appeal is a very substantial one.  The matters deposed in the applicant’s affirmation do not provide a reasonable excuse for the delay.

6.  The applicant has no reasonably arguable ground of appeal.  His claim for non-refoulement protection was rejected because of the Board’s finding of the complete lack of credibility of the claim.  After rigorous examination and anxious scrutiny, the judge found no public law ground to reverse the Board’s decision.  After reviewing all the documents available before the Court, it was found that the intended appeal had no reasonable prospect of success. 

7.  Also, the applicant failed to raise any questions of great or general importance that merit the submission to the Court of Final Appeal for determination. There is no basis for us to grant leave on the “otherwise” limb.  The statutory criteria set out in section 22(1)(b) of the Ordinance are not met.

8.  For these reasons, we refuse to extend time for the applicant to seek leave to appeal to the Court of Final Appeal, and dismiss the application for leave accordingly.

The applicant acting in person

CAMP 59/2017

[2018] HKCA 25

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 59 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 121 of 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock on 15 September 2017 refusing leave to the applicant to apply for judicial review. The applicant came to Hong Kong on 22 October 2009 and was allowed to land when he indicated he would claim international protection. He immediately lodged a non-refoulement claim. The Director decided against his claim on 23 March 2016, supplemented by a further decision of 3 January 2017. He appealed to the Torture Claims Appeal Board and the Board, after hearing him, dismissed the appeal on 29 March 2017. The intended judicial review was in respect of that decision of the Board. The Board rejected the non-refoulement claims of the applicant in respect of torture risk, BOR 3 risk, persecution risk and BOR 2 risk.

2.  The judge refused leave on 15 September 2017 after hearing the applicant on 22 August 2017.  She gave the following reasons in refusing leave at [18] to [23] of the Form CALL-1:

“ 18. 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. He also applied the correct standard of proof. The applicant’s complaints against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

19. I found no substance in the grounds of this application. In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated. The applicant is aggrieved he was not believed because he answered all questions honestly. The adjudicator rejected the applicant’s evidence in its entirety and gave full and cogent reasons why. He carefully analysed the approach in assessing credibility following the relevant authorities. He rejected everything the applicant claimed, he did not find him a genuine claimant. I found no fault in his finding of fact.

20. There is a submission the board relied on inadequate COI material. Firstly, the adjudicator did not consider any COI information therefore cannot be accused of significantly relying on any source of news. Secondly, whether he put weight on irrelevant COI considerations, unofficial information, out of date information or failed to objectively analyse information is otiose here. Having rejected the applicant’s evidence and his claim, there was no need for the adjudicator to research and enquire into the COI conditions. The references in the applicant’s grounds to these considerations do not apply here.

21. The applicant relies on a procedural impropriety/unfairness ground in that he was unprepared for the appeal hearing because the bundle was in English. He was confused in terms of what was happening and the hearing was conducted unfairly due to a lack of care by the Board. There is no record of any complaint made by the applicant to the Board during the hearing that he was ill-prepared and confused. If this had been the case, I would have expected some reference to this during the hearing. An interpreter was provided during the hearing to assist the applicant and could have made known to the adjudicator any complaint he had. There is no substance in this ground.

22. 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.

23. 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.”

3.  According to court record, the CALL-1 form and the sealed order of the judge were sent by post to the applicant on 15 September 2017.

4.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  On 29 November 2017, he applied by summons for extension of time to appeal.  His application was supported by an affirmation.  In the affirmation, he said he could not read and write English. He also said he had nobody to assist him with an appeal and he was ignorant about the possibility of appeal. 

5.  He did not explain how he was able to produce the summons and affirmation and why those who assisted him in the preparation of the same could not render assistance earlier.  

6.  On 20 December 2017, he lodged a set of submissions (written in English, presumably by someone on his behalf).  In those submissions, he did not give further explanation for the delay.

7.  By reason of Order 59 Rule 2A and Rule 14A(1), this Court can determine an application for extension of time to appeal without an oral hearing.  The applicant had been notified of such possibility by the Registrar of Civil Appeals in the directions of 6 December 2017 before he lodged his submissions pursuant to such directions.  Notwithstanding the request for an oral hearing by the applicant, we consider that the present application can be determined on the papers.

8.  We do not find the long delay between 15 September and 29 November 2017 to be excusable.  The applicant obviously had access to someone to assist him in the litigation.  He did not explain why he could not ask that person or someone else to interpret to him the decision of the judge set out in the CALL-1 form.  

9.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217 of 2015, 22 Jananuary 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601 of 2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452 of 2016, 22 November 2016. 

10.  The applicant did not include any draft notice of appeal in his documents filed with the court.  In his submissions, he said the judge’s decision was not fair and just and did not take into account of him as an unrepresented litigant with limited resources.  He also raised the following specific grounds at paragraph 7 of his submissions:

“ A. Paragraph 11 of the Decision by the Deputy judge “the Director also found internal relocation viable and reasonable option” there are high-profile organizer is its completely untenable for me or family.  As to its grounds.

B. Paragraph 12 of the Decision by the Deputy judge “if he faces a real risk of persecution torture of CIDTP” I challenge it I submit many documents about the deputy judge did not take accounts it.  Is its my ground.

C. Paragraph 19 of the Decision deems my application for leave for judicial review to have “no substance” as to its grounds.

D. This is asserted after conducting a review of the Appeal decision the member of the TCAB where in various assertion are made.  For example in paragraph 38 that “the Applicant could not provide no reason at all for his on his families support of the B.N.P” “its not only death threats but an actual murder for political reasons” I did not consider this to be an acceptable reasonable or credible.

E. This goes against the long-established threshold established in torture claim, being substantial grounds for believing.  This standard is reinforced by general comment NO 1 by the UN committee Against torture of paragraph 6 & 7.

F. The precedent is further established in TK v Jenkins of a foreseeable, real and personal risk.  In Njamba v Sweden that the is foreseeable real and personal and present.

G. The appeal decision does not into account the risk of harm including my brother murder.”

11.  He further said he is suffering “various mental patient” and was recently hospitalized for “brain stoke (sic)”.  He referred to a CT scan appointment on 21 December 2017 and a heart scan examination on 7 August 2019. He did not provide any medical reports for these treatments in his affirmation. This Court cannot act on bare assertions in submissions.  In any event, we cannot see any connection between these assertions and the intended appeal. 

12.  Coming back to the other grounds he advanced in the submissions, we do not find any merit in them.  Though the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the primary decision maker is still the Board.  The court should not usurp the role of the Board. 

13.  Having read the full decision of the Board, we are of the view that it was perfectly open to the Board to come to its conclusion on the complete lack of credibility of his claim.  The Board did not rely on internal relocation.

14.  When one reads the judge’s observations in the CALL-1 Form together with the detailed Reasons given by the Board in its Decision of 29 March 2017 as well as the Notice of Decision of the Director of 23 March 2016 and Further Decision of 3 January 2017, we agree with the judge’s conclusion that the intended judicial review is not reasonably arguable.  We find no basis to suggest that the intended appeal is reasonably arguable.  We do not see any errors of law or procedures in the proceedings before the Board.  We agree with the judge that leave to apply for judicial review should not be granted.

15.  For these reasons we do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 29 November 2017 is dismissed accordingly.

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