RE RANA SOHEL

CAMP 23/2019

[2019] HKCA 855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 23 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 126 OF 2017)

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J U D G M E N T

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

Introduction

1.  By a decision dated 25 August 2017 (“the Decision”), Deputy High Court Judge Woodcock (“the Judge”) refused to grant leave to the applicant to apply for judicial review.  The intended judicial review was against decision of the Torture Claims Appeal Board (“the Board”) dated 23 March 2017. 

2.  On 11 January 2019, the Judge refused to grant an extension of time to the applicant to appeal against the Decision (“the Leave Decision”).

3.  The applicant now renews the application for an extension of time to appeal against the Decision to this Court by way of a summons dated 1 February 2019.  Pursuant to the directions of the Registrar of Civil Appeals given on 4 February 2019 and 26 February 2019, the applicant should lodge his written submissions on or before 14 March 2019 or he shall be debarred from lodging any written submissions, and his application for extension of time to appeal shall be determined on the basis of the summons and the affirmation in support.  The applicant failed to file his written submissions as directed.  The Registrar further directed that it is for this Court to decide whether to determine the application on paper.  We consider it appropriate to determine this application on paper and we do so accordingly.

Background

4.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 20 February 2014 and was arrested by the police on 26 February 2014.  On 2 March 2014, he raised his non-refoulement claim.  The applicant’s claim was based on his alleged fear that if he were to return to Bangladesh, he would be harmed or even killed by his paternal uncle in order to obtain the title of his family land.

5.  By a Notice of Decision dated 22 May 2015, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 3 risk, the persecution risk, and the torture risk. 

on all applicable grounds.

The Judge’s decision

7.  On 10 April 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation filed on the same day, he reiterated the background of his case and put forward the following grounds of his intended challenge:

(i)   failing to carry out sufficient research and inquiry into the Country of Origin Information (“COI”) conditions;

(ii)   cherry-picked COI and put weight on out-dated and irrelevant COI;

(iii)   failing to evaluate if there existed a consistent pattern of gross, flagrant or mass violations of human rights in Bangladesh;

(iv)   failing to assess if state protection existed in Bangladesh;

(v)   taking into account of irrelevant or incorrect considerations and unreasonably dismissed the applicant’s case;

(vi)   failing to call for psychological and psychiatric evaluation and report at any stage of screening;

(vii)   applying incorrect standard of proof;

(viii)   failing to provide duty lawyer at the first instance;

(ix)   failing to properly assessment if state protection existed in Bangladesh; and

(x)   late provision of the hearing bundle and failing to provide interpretation of the documents in the bundle.

8.  On 25 August 2017, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  After summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [13] – [16] for her refusal to grant leave:

“ Leave to apply for judicial review

13. I have considered, with rigorous examination and anxious scrutiny the papers and grounds of this application. I found the adjudicator’s decision to be without fault. He analyzed 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.

14. I found no substances 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. For example, in the hearing before the adjudicator there is no record of any complaint from the applicant about his previous legal representation and his confusion. An interpreter was provided and at the applicant’s disposal; he confirmed he understood the procedure at the hearing and was happy to proceed.

15. 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.

16.   In my judgment, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

9.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 8 September 2017).  By the summons filed on 8 October 2018, he sought an extension of time for him to appeal against the Decision.  

10.  In the supporting affirmation, the applicant stated that there were merits in his intended appeal which would be sufficient reason and justification for the court to exercise its discretion to allow his application.  He further stated that due to his ignorance of law and wrong advice from his friends, he sought to submit another Form 86 and his application was refused on 21 September 2018.  He then came to realize the mistake and took out the present application.  He further complained that the Director and the Board did not properly inquire into the real situation of his home country and the risk of harm that he would face if refouled.

11.  By the Leave Decision, the Judge found that the delay of more than a year’s time in taking out the summons was substantial. The applicant made a conscious decision not to appeal the Decision but sought to make a duplicate application by filing another set of Form 86 which was clearly an abuse of court process.  Ignorance of the law was not an excuse.  In any event, the Judge found no merit in the applicant’s intended appeal.  There were essentially no valid grounds of review nor any justifiable complaint of the Decision set out in the summons and supporting affirmation nor did the applicant put forward any grounds at the hearing other than saying that he did not want to leave Hong Kong.  Having carefully review all the evidence, the Judge found no prospect of success in the applicant’s intended appeal and refused the application for an extension of time to appeal, see [10] – [12] of the Leave Decision.

The Renew Application

12.  By the summons dated 1 February 2019, the applicant renewed the matter before us.  In the supporting affirmation, the applicant advanced the following grounds of appeal:

(i)   the Judge was wrong in law in holding that there was no state acquiescence or involvement; and

(ii)   the Judge failed to provide detailed reason in support of her decision.

Legal Principles

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

14.  Even if the court does not accept that the applicant’s explanation for the delay is reasonable, the court should still examine if he has merit in the intended appeal, see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

15.  In assessing the merits of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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].  For the purpose of this application, the salient principles are as follows:

(1)   The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  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.

(2)   An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)   In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

16.  In this case, the delay of more than one year in taking out the summons for an extension of time is inordinate and we agree with the Judge that his explanation for the delay that on one hand, he believed there were good grounds of appeal that was not necessarily considered at the stage of applying for leave for judicial review and on the other hand, took out a duplicate application by filing another set of Form 86 to re-litigate the matter was clearly an abuse of court process and not a good reason for the delay.

17.  The applicant must therefore satisfy us that the intended appeal has a real prospect of success before extension of time will be granted : see Re Ansar Muhammad [2018] HKCA 227.  We are of the view that the two grounds of appeal as set out in the supporting affirmation are vague and general accusations and plainly not arguable.

18.  In the present case, the Board rejected the applicant’s claim on the issue of credibility and the applicant’s evidence was rejected on its entirety.  There was a lack of evidence to find a real and substantial risk that the applicant would be subject to torture or ill-treatment upon refoulement and there was no evidence of state involvement or acquiescence.  In any event, internal relocation would be viable option to avoid the risk, if any.  As explained, the assessment of the risk of harm and internal relocation are within the province of the Board. The court will not interfere with such assessment unless they are reversible on public law grounds.  The Judge, after rigorous examination and anxious scrutiny, did not find any errors of law or procedural unfairness or irrationality that warrant the court’s interference with the Board’s decision.  The Judge was plainly right in her findings.

19.  Contrary to the applicant’s complaint that the Judge failed to provide detailed reasons in support of her decision, the Judge had set out her analysis and findings relating to the applicant’s grounds of review at [13] to [16] of the Decision in detail and we can see no flaw in the Judge’s findings and conclusions. 

20.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 1 February 2019 is dismissed accordingly.

21.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.