RE BAPPY SHAHAJADA MURAD

CAMP 131/2019

[2021] HKCA 615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 131 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1416/2018)

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J U D G M E N T

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

1.  On 8 December 2020, this court (Chu JA, Barma JA and Au JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the judge”) on 8 March 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 2 February 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“The claims that the judgment has made stated is no substance in the grounds of the application is not true.

On the strength of the grounds not made complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

The applicant gently did not have enough time to address the bundle.

Rest of the grounds I will submit as soon as possible.”

4.  In the affirmation dated 2 February 2021, the applicant deposed that:

“…On around 28^th day of January 2021, I get the judgment dated 08^th day of December 2020,

Because of the Virus situation in Hong Kong it was quite difficult for me to get help from any one as I am an uneducated person.  Due to the language problem, it took me days to find help.  Please accept my sincere apology and accept my fresh application for Notice of Motion for the leave to apply to the Court of Final Appeal.”

5.  In another affirmation also dated 2 February 2021, the applicant deposed that:

“1.  The [judges] were wrong in law in holding that there was no state acquiescence or involvement.

2.  The [judges] also failed to find out the clear details of the current situation of Bangladesh”

6.  The applicant lodged a written submission in support of the application on 4 March 2021.  In the written submission, the applicant referred to a number of international treaties and cases on high standard of fairness but he did not explain their relevance.  He also contended that:

(1)  the Board failed to meet the high standard of fairness.  The applicant cited ST v Betty Kwan & Anor [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 without explaining the relevance of those cases;

(2)  the Board failed to properly scrutinize the Director’s Decision and adopted a general practice to not question the decision of the Director; and

(3)  the decision maker is under a duty to act fairly.

7.  Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

8.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  He did not explain why he did not receive the judgment until 28 January 2021.  He also did not provide sufficient particulars of the steps he took to obtain language assistance.  We nonetheless go on to consider the merits of the intended appeal.

9.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

10.  The applicant advanced a number of grounds related to alleged errors in the decisions of the Board and the Director, which do not relate to any error in our judgment.  These grounds are therefore not viable grounds of appeal.

11.  As for the grounds raised in the affirmation dated 2 February 2021 based on state acquiescence, we have dealt with this ground in [14] of our judgment and the applicant has failed to identify any error in our judgment.  This ground is in our view not reasonably arguable before the Court of Final Appeal.  In the same affirmation, the applicant also advanced a ground based on the situation in Bangladesh.  This ground, like all the grounds advanced by the applicant, lacks particulars and is bound to fail.

12.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.  For these reasons, the Notice of Motion dated 2 February 2021 is dismissed.

The applicant acting in person

CAMP 131/2019

[2020] HKCA 992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 131 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1416/2018)

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J U D G M E N T

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Hon Barma JA (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 KW Lung given on 8 March 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 21 June 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 22 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally and was arrested by the police on 20 March 2014.  He lodged a non-refoulement claim on 22 March 2014. 

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 [3] to [4] of the CALL-1 form.

4.  By a Notice of Decision dated 22 September 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 28 May 2018, the Board dismissed the appeal on 21 June 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [21(vi)] of the Board’s Decision, the Board expressed doubts over the truthfulness of the applicant’s evidence.  The Board held that the applicant will not be at risk from any of the proscribed harm upon his return.  The Board was also satisfied at [28] that state protection would be available for the applicant and at [53] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 18 July 2018 which contained the following grounds for judicial review, summarised below:

(i)      the Board unlawfully fettered its discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(ii)     the Board acted in a procedurally unfair manner in dealing with the appeal;

(iii)    the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness; and

(iv)    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 18 July 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(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; and

(2)     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.  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 give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [19] of the CALL-1 form:

“14.     The applicant had appeared before me. He confirmed that he could read English himself and it was unnecessary to have translation of the Hearing Bundle for him. He had read the Hearing Bundle before the appeal hearing. He had had no difficulty with the Adjudicator. Also, he had no complaint against the Adjudicator except that he was unhappy with the Adjudicator’s decision.

15.     He further said that the affirmation was prepared by his friend whom he trusted. He did not read through it before he signed it.

16.     Grounds (1) to (3) are obviously inconsistent with what he said before this Court. They fail.

17.     As to the allegation that the Board had relied on the source of news which was outdated or simply hearsay, under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the Immigration officer . The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (‘the Ordinance’). The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187. The applicant has not set out any reason why he considers that the information is unreliable. Ground (4) fails too.

18.     I find that the applicant is unable to show that his proposed judicial review has reasonable chance of success.

CONCLUSION

19.     Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.”

Application for extension of time to appeal and grounds for appeal

10.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 27 March 2019, the applicant sought leave to appeal out of time.  However, he was late by just under a week.  His application was dismissed by DHCJ K.W. Lung on 29 May 2019. 

11.  The applicant renewed his application to this court by a summons dated 17 June 2019.  In the summons, he referred to the affirmation filed on the same day for grounds of appeal.  In that affirmation, he deposed that:

“The [judge] was wrong in law in holding that there was no state acquiescence or involvement.

The [judge] failed to provide detailed reason in support of his decision.”

12.  In his skeleton submissions dated 23 July 2019, the applicant submitted that:

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

(2)     the decision maker failed to meet the minimum standard of procedural fairness.

Discussion

13.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

14.  The ground based on state acquiescence lacked particulars and is bound to fail.  It was, in any case, not a ground relied upon for judicial review in the court below.  Further, as this court has repeatedly held, an application for judicial review does not operate as a further appeal and the court is not required to come to a view on state acquiescence even if it had been raised with sufficient particulars.  The court would only interfere with the decision of the Director or the Board on public law grounds, none of which are made out in the Form 86 or the documents filed for the intended appeal.

15.  Having carefully considered the documents filed for the leave for judicial review application and the CALL-1 form, we are of the view that the judge has given sufficient reasons for his decision at [14] – [19] of the CALL-1 form.

16.  As for the grounds raised in the written submissions, they are in very broad terms and the applicant did not explain how the authorities cited by him are applicable to the present application.  Also, they relate to the alleged errors by the Board and the Director only but they do not identify any error on the part of the judge.  These grounds are also bound to fail.

17.  We therefore do not see any prospect of success in the intended appeal, and will not grant extension of time for a hopeless appeal.  The summons of 17 June 2019 is dismissed accordingly.

18.  We are also 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.

The applicant acting in person