RE SK NIZAMUDDIN

CAMP 269/2019

[2020] HKCA 594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 269 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1035 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 the decision of 19 December 2018 (“the Decision”)[1], Campbell Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 23 November 2017 which upheld the decisions of the Director of Immigration (“the Director”) dated 6 May 2016 and 27 June 2017.

2.  On 11 February 2019, the applicant took out a summons for an extension of time to appeal against the Decision.  On 25 April 2019, the Judge refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2].

3.  By a summons dated 18 October 2019, the applicant sought leave from this Court to appeal against the Leave Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 30 October and 18 November 2019, the applicant was directed to lodge his written submissions in support of his summons on or before 4 December 2019.  The applicant failed to lodge his written submissions as directed. 

5.  The Registrar further directed that unless the applicant lodged his written submissions by that time, he would 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 filed in support. 

6.  Under Order 59 rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the supporting affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

7.  The applicant is a national of India.  He came to Hong Kong on 15 June 2014 as a visitor and was permitted to stay for 14 days.  He did not depart and had overstayed since 30 June 2014.  On 31 July 2014, the applicant surrendered to the police and was then transferred to the Immigration Department for investigation.  On 2 August 2014, he lodged his non-refoulement claim by way of written representation on the basis that if he were to return to India, he would be harmed or killed by his uncle SK Sallahuddin or his friends from All India Trinamool Congress as the applicant failed to pay his loan to his uncle.  His uncle also wanted to take revenge because of the applicant’s abusive behaviour when he demanded repayment from the applicant. The factual background was succinctly summarized by the Judge at the Decision at [4].

8.  By Notice of Decision of 6 May 2016 and Notice of Further Decision of 27 June 2017, the Director assessed the applicant’s claim on all applicable grounds and determined them against him.  The Director’s decisions covered the BOR 2 risk[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

9.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  After the hearing on 12 October 2017, the Board dismissed the appeal on 23 November 2017.  For the reasons and analysis stated in [10] to [37] of the Board’s decision, the Board found that even based on the applicant’s account of the three incidents of attack by his uncle and his men as mentioned in [3] to [5] of its decision, the applicant had not suffered any “severe pain or physical or mental suffering reaching the minimum level of severity” and the Board found no substantial ground to believe that the applicant would face any future risk of serious harm if refouled.  Further, the applicant did not raise his non-refoulement claim after he came to Hong Kong in June 2014 until he was arrested by the police 13 months later and this was not consistent with an act of a genuine asylum seeker.  In any event, the Board found no state involvement or acquiescence and internal relocation was a reasonable and viable option.  For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds. 

10.  On 8 December 2017, the applicant filed a Form 86 together with his supporting affirmation for leave to apply for judicial review of the Director’s and the Board’s decisions.  He advanced the following grounds for his intended challenge:

(1)  The Adjudicator misdirected himself on the law by taking into account that the applicant had to have experienced torture in the past in order to establish his claim under all heads that he was liable to the relevant risk in the future.

(2)  The Adjudicator failed to carry out sufficient up to date research, which was procedurally improper and unfair to the applicant.

(3)  The Adjudicator failed to take into account COI and therefore failed to put appropriate weight upon it, which was Wednesbury unreasonable.

(4)  The Adjudicator failed to consider whether there was a pattern of gross, flagrant or mass violation of human rights in India, which was Wednesbury unreasonable.

(5)  The Adjudicator failed to consider whether state protection exists in India including whether the state had exercised due diligence or sufficient due diligence and the decision was thereby irrational.

(6)  The Adjudicator took into account and placed weight upon irrelevant, incorrect or inaccurate considerations, which could not be reasonably inferred, which was both irrational and Wednesbury unreasonable.

(7)  There were failures at first instance by the duty lawyer.

(8)  There was no legal representation on appeal, which was procedurally unfair.

The Judge’s decisions

11.  The applicant did not request an oral hearing and the Judge considered his application on the papers.  By her Decision made on 19 December 2018, the Judge decided to refuse leave for the applicant to apply for judicial review after her due consideration of the Director’s and Board’s decisions. The reasons were duly set out at [11] to [19] of the Decision:

“11. The applicant has complained of procedural irregularity, unfairness, irrationality and Wednesbury unreasonableness but has not provided specific instances of such. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

12. As to ground i), in which the applicant complains that the Adjudicator misdirected himself by finding that the applicant had to show previous torture in order establish substantial grounds for believing he would be the subject of the relevant harm under the various heads of claim in the future, the Adjudicator did no such thing. He laid out the four elements of the claim and thereafter considered them individually. At paragraph 15, he specifically states “Although the lack of Element 1 in the past does not mean no torture in the future, the evidence does not establish substantial grounds for showing a foreseeable and real risk”. In that he was correct. In order to establish his fear of the relevant risk if refouled, there must be an evidential basis from which that fear of risk can be ascertained and the evidential basis relied upon by the applicant was weak in the extreme. This ground of review is without merit.

13. As to grounds ii) and iii), which have a similar basis. It is submitted by the applicant that the Adjudicator failed to consider relevant and up to date research, failed to do sufficient research and enquiry in respect of someone fitting the profile of the applicant. There are no particulars provided for this submission but in any event I am satisfied that the Adjudicator fairly considered all relevant and up to date material in respect of the applicant’s claim. These grounds are not arguable.

14. As to ground iv) the applicant submits that the Adjudicator should have considered whether there was a pattern of gross, flagrant or mass violation of human rights in India. This would have been relevant if there had been any suggestion that the applicant’s claim fell to be considered under this head. However, this was a private dispute between the applicant and his uncle in which the applicant defaulted on his debt, assaulted his uncle and then fled the country. This ground is totally without merit.

15. As to ground v), the applicant submits the Adjudicator should have considered the existence of state protection in both its standard and extended meaning. Once again, this may have been relevant if this had not so clearly been a private dispute in which the applicant chose not to go to the police. He does not make any complaint against the state or state agents and it is irrelevant to his claim. This ground has no merit.

16. As to ground vi), the applicant complains that the Adjudicator took into consideration matters which were irrelevant, inaccurate or incorrect drawing inferences therefrom which were not reasonable. This is a wide ranging complaint without substantive explanation. This court cannot possibly assess what facts, if any, were taken into consideration wrongly under this head unless the applicant provides the basis for this complaint. Having said that, the factual basis of the applicant’s claim was very simple. The Adjudicator had clearly grasped those facts and analysed them at their highest. There was no need for him to rehearse them within his explanation. This ground is not arguable without more.

17. As to ground vii), it arises from the proceedings before the Director and is not a proper subject of judicial review.

18. As to ground viii), the applicant submits that he was treated unfairly by reason of the fact that he was not provided with legal representation before the Adjudicator. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The duty lawyer scheme will continue to represent applicants on their appeal if they are of the view there is merit in their case. Their assessment is on a case-by-case basis. As the applicant was absent, I am unable to ascertain if he did apply to the scheme for legal representation and, if they did refuse his application, on what grounds they refused it. Nevertheless, what else could have been advanced on behalf of the applicant which he could not have done himself. He is clearly an erudite man and the basis of his claim was limited. He had suffered no harm at all and had taken part in only one incident arising out of a private debt. His family had been left unharmed throughout and he had left the country at the first opportunity. This ground is not reasonably arguable.

Conclusion

19. Despite the fact that the applicant did not substantiate any of his grounds of review, I have considered the papers and grounds 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 Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of his determination, which was open to him on the facts and was reasonable.”

12.  The 14-day period for the applicant to appeal the Decision of the Judge, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 2 January 2019.  On 11 February 2019, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time. 

13.  The summons was heard on 25 April 2019.  The Judge refused the application for leave to appeal out of time and dismissed the summons at the conclusion of the hearing.  The applicant explained at the hearing that he did not receive the Decision as he was residing at a temporary address in December 2018.  He admitted that he did not inform the court or the Director of that address and accepted it was his fault.   On the issue of merit, the applicant did not provide any draft / proposed grounds of appeal to challenge the Decision and the applicant merely wished the Court of Appeal to reconsider his case for he wished to stay in Hong Kong.  As such, the Judge did not see any arguable basis to challenge the Decision or any prospect of success in his intended appeal. 

The present application

14.  On 25 October 2019, the applicant filed a summons together with supporting affirmation seeking leave to appeal against the Decision out of time.  Under Order 59 rule 2B(3) of the Rules of the High Court (Cap. 4A), the applicant may make a further application for leave to appeal to the Court of Appeal within 14 days from the date of the refusal of leave by the judge, which expired on 9 May 2019. The applicant was late for 5.5 months in applying to this Court for leave to appeal out of time.  Under Order 59 rule 2B(6) of the Rules of the High Court (Cap. 4A), this Court may extend the time for making the application for leave to appeal.

Legal principles

15.  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.

16.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would 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. 

17.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of 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

18.  The applicant’s present application is late by more than five months, which is substantial.  He stated in his supporting affirmation that he did not receive the Leave Decision.  The court file showed: (1) the written decision of 25 April 2019 and the sealed order were sent to the applicant on 26 April 2019 by registered post at an address in Temple Street, Yau Ma Tei, which was the address provided by the applicant at the hearing of the leave application before the Judge on 25 April 2019; (2) on 3 May 2019, the court’s letter was returned by the post office and the reason given was “No such address”; and (3) on 25 October 2019, a search of the court file was carried out by a Ms Zanib with a letter of authorization from the applicant, who was then remanded at the Castle Peak Bay Immigration Centre.  In the circumstances, although we accept that the applicant did not receive the Leave Decision, we did not consider the applicant’s explanation satisfactory.  First, the refusal of his application was made at the hearing on 25 April 2019 when he was present. He did not need the written decision to know that his application was refused.  Second, the written decision and the sealed order did not reach the applicant because he had provided an ineffectual address. 

19.  As to his delay to lodge an appeal against the Decision, it was late by about six weeks. The applicant admitted he failed to inform the court of the change of address.  We agree with the Judge that it was an inexcusable delay.

20.  Where the delay was both inordinate and inexcusable, the applicant is required to demonstrate that the intended appeal has real prospect of success, before leave of appeal is to be granted, seeRe Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

21.  We therefore turn to the merit of the intended appeal.

22.  In this case, the Board considered that even on the applicant’s account of events, he had not suffered any “severe pain or physical or mental suffering reaching the minimum level of severity”.  The Board found no substantial ground to believe that the applicant would face any future risk of serious harm if refouled.  Further, he did not file his non-refoulement protection claim for 13 months after he came to Hong Kong and only did so until he was arrested by the police and it had undermined his credibility as a genuine asylum seeker.  It was within the Board’s province to make these findings, and we see no proper basis to interfere.

23.  Further, the applicant did not provide any draft or proposed grounds of appeal in his summons and supporting affirmation to challenge the Judge’s decisions.  His intended appeal is bound to fail.  In any event, we have carefully reviewed the Decision and are satisfied that the Judge had examined the Board’s decision with vigorous examination and anxious scrutiny and that the applicant’s intended application for judicial review was rightly refused.

24.  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 18 October 2019 is dismissed accordingly.

25.  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.

[1] [2018] HKCFI 2486

[2] [2019] HKCFI 1109

[3] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] 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.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[6] 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.