CAMP 218/2019
[2021] HKCA 374
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 218 OF 2019
(ON AN INTENDED APPEAL FROM HCAL NO. 442 OF 2017)
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| Before: | Hon Poon CJHC and Barma JA in Court |
| Date of Judgment: | 23 March 2021 |
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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 Deputy High Court Judge Woodcock given on 23 February 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 July 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 November 2016 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Bangladesh. He entered Hong Kong on 9 March 2016 illegally and was arrested on the same day. He lodged a non-refoulement claim on 13 March 2016.
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 [2] to [4] of the CALL-1 Form.
4. By a Notice of Decision dated 8 November 2016 (“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 Board. After a hearing on 19 May 2017, the Board dismissed the appeal on 19 July 2017 (“the Board’s Decision”). At [27] of the Board’s Decision, the Board found that the applicant’s case was not credible. The Board’s Decision covered all four grounds for non-refoulement protection.
The judge’s decision
6. The applicant filed a Form 86 on 25 July 2017 which contained no ground for seeking relief.
7. In his affirmation in support of the leave application dated 25 July 2017, the applicant advanced the following grounds for judicial review, which have been summarized by the judge at [14] of the CALL-1 Form:
“14. The applicant claims in his grounds that the appeal board committed an error of law in that it failed to treat the appeal as a rehearing. He failed to independently assessed the Country of Origin conditions and the concept of State acquiescence. He did not obtain all the relevant Country of Origin information, only referring to the applicant’s supporting documents and evidence. The adjudicator failed to consider the legal principles of State acquiescence.”
8. 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 [15] to [17] of the CALL-1 Form:
“15. The adjudicator had no need to consider State acquiescence or Country of Origin information in depth because he found the applicant failed in his claim because he was not credible. There was no need therefore for the adjudicator to go on and evaluate or consider that information or that concept.
16. 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.
17. 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.”
Application for extension of time to appeal and grounds for appeal
9. Contrary to Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A, the applicant failed to lodge an appeal within 14 days. By a summons filed on 8 July 2019, the applicant sought leave to appeal out of time. His application was dismissed by the judge on 30 August 2019.
10. By a summons dated 4 September 2019, the applicant renewed his application for an extension of time to appeal before this court.
11. In his affirmation of the same day filed in support of the application, the applicant advanced the following grounds of appeal:
(1) the judge was wrong in law in holding that there was no state acquiescence or involvement; and
(2) the judge failed to provide detailed reason in support of her decision.
12. In his skeleton submissions dated 10 October 2019, the applicant submitted that the Board acted in a procedurally unfair manner in that it failed to properly assess the credibility of the applicant.
Discussion
13. Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.
14. The applicant has not provided any explanation for his delay in bringing the intended appeal and the delay was substantial. We nonetheless go on to consider the merits of the intended appeal.
15. The applicant submitted that the judge was wrong in holding that the Board did not have to consider state acquiescence. He also submitted that the judge failed to give sufficient reasons for her decision.
16. As the judge rightly pointed out, the Board has held that the applicant was incredible and that besides the claim that he is a national of Bangladesh, the applicant “has not established any of the facts he has asserted” before the Board ([41] of the Board’s Decision).
17. As the applicant has failed to identify any public law error in the Board’s conclusion on his lack of credibility, the judge was right to conclude that there was no need for the Board to consider the issue of state acquiescence. We would therefore dismiss these intended grounds of appeal.
18. As for the ground based on the alleged error by the Board in evaluating the credibility of the applicant raised in the submissions before this court, this ground does not identify any error on the part of the judge. It is therefore not a viable ground of appeal. 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.
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 4 September 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.
| (Jeremy Poon) | (Aarif Barma) |
| Chief Judge of the High Court | Justice of Appeal |
The applicant, acting in person
[1] 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.
[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.