RE MADBAR SOHEL

CAMP79/2019

[2021] HKCA 389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 79 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 797 /2017)

________________________

RE:

MADBAR SOHEL

Applicant

________________________

Before:  Hon Cheung JA, Barma JA and Au JA in Court

Date of Judgment:  25 March 2021

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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 23 April 2020, this court (Cheung JA and Barma JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Campbell-Moffat J (“the judge”) on 24 August 2018 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 decisions 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 5 June 2020, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“On 23 April 2020 the [judges] cancel my claim for leave to apply for judicial review against the decision of TCAB. But I am not agree with this decision. I did not get fair judgment, to get the fair judgment I want to appeal to the Court of Final Appeal. Because it is impossible for me to return my country.”

4.  In the affirmation dated 5 June 2020, the applicant deposed that:

“…on 23 April 2020 I have got a decision. But I am late to appeal for Notice of Motion.

5.  The applicant lodged a written submission in support of the application on 15 June 2020.  In the written submission, the applicant explained why it is unsafe for him to return.

6.  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.

7.  Although the applicant acknowledged that this application was out of time, no explanation for the delay was provided.  Notwithstanding this we shall deal with the application on its merits.

8.  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.  

9.  The bare assertion by the applicant that it is unsafe for him to return is not a valid ground for judicial review or a valid ground of appeal.  As for the other grounds raised by the applicant, they lacked particulars and we are therefore of the view that these grounds are not reasonably arguable before the Court of Final Appeal. 

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

11.  For these reasons, the Notice of Motion dated 5 June 2020 is dismissed.

(Peter Cheung)	(Aarif Barma)	(Thomas Au)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The applicant acting in person

CAMP 79/2019

[2020] HKCA 222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 79 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 797/2017)

________________________

RE:

MADBAR SOHEL

Applicant

________________________

Before:  Hon Cheung JA and Barma JA in Court

Date of Judgment:  23 April 2020

________________________

J U D G M E N T

________________________

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

1.  This is an application for extension of time to appeal against the decision of Campbell-Moffat J given on 24 August 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 17 October 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 19 May 2016 and 3 March 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 15 December 2013 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 17 December 2013. 

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 [4] to [5] of the CALL-1 form.

4.  By a Notice of Decision dated 19 May 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 3 March 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Board.  After a hearing on 3 April 2017, the Board dismissed the appeal on 17 October 2017 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [78] of the Board’s Decision, the Board held that there was insufficient evidence to show that the applicant had a genuine and substantial risk of harm if refouled. The Board was also satisfied at [62] that state protection would be available for the applicant and at [67] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 23 October 2017 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 23 October 2017, the applicant submitted that the Board did not give him time to submit his supporting documents.  He would submit his documents in the future.  He explained why it is unsafe for him to return.  He wished to remain in Hong Kong until he had settled his problem.

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  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 [10] to [13] of the CALL-1 form:

“10. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11. There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria. They gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

13. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review”

12.  According to the court’s records, a copy of the CALL-1 form and the sealed copy of the judge’s order were sent to the applicant on 24 August 2018.

Application for extension of time to appeal and grounds for appeal

13.  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 15 March 2019, the applicant sought leave to appeal out of time.  In his affirmation in support dated 14 March 2019, the applicant complained that the judge’s decision had been reached unfairly without allowing the applicant an opportunity to clarify his situation in his country.  The judge’s decision heavily relied on the Country of Origin information provided by the Director.  He was unrepresented and was not aware of the 14-day time limit.  His application was dismissed by Campbell-Moffat J on 26 April 2019.

14.  By a summons dated 7 May 2019, the applicant renewed his application for an extension of time to appeal before this court.  In the affirmation in support of the same date, the applicant submitted that he did not appeal in time because he did not understand English. 

15.  In his skeleton submissions dated 14 May 2019, the applicant submitted that he did not understand English.  He had no legal representation when the judge dismissed his application for leave for review.  He paid a lawyer in the Castle Peak Bay Immigration Centre, apparently for the purpose of filing a summons for extension of time to appeal.  He asked that he be granted leave for judicial review.

Discussion

16.  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.

17.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  Ignorance of the law on the part of the applicant, even if it is due to his difficulty in understanding English, is not itself a reasonable excuse for the delay.

18.  We nonetheless go on to consider the merits of the intended appeal.  The applicant did not give any ground for the intended appeal in the summons and affirmation dated 7 May 2019.

19.  The applicant complained that the judge below did not give him an opportunity to clarify the situation in Bangladesh.  As the applicant did not request an oral hearing before the judge, and even now has not provided any particulars of the situation he wished to clarify, this ground is without merit.

20.  He also submitted that the judge’s decision heavily relied on the Country of Origin information provided by the Director.  The applicant did not provide any particulars for this ground.  Further, the applicant did not put forward any ground for judicial review based on the Country of Origin information.  This ground is also without merit.

21.  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 7 May 2019 is dismissed accordingly.

22.  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.

(Peter Cheung)	(Aarif Barma)
Justice of Appeal	Justice of Appeal

The applicant acting in person