MIA MOHAMMAD MILON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 168/2019

[2019] HKCA 1262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 168 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 593 OF 2017)

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J U D G M E N T

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

1.  On 22 March 2019, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim^[1].

2.  On 8 July 2019, the judge refused to grant leave to the applicant to appeal against his said decision out of time as he considered the intended appeal does not have any prospect of success^[2].

3.  The applicant filed a summons with the Court of Appeal on 22 July 2019 without clearly stating the relief sought.  Having read what was stated in the summons with the affirmation in support, we think it appropriate to treat this summons as a renewed application for leave to appeal against the judge’s decision out of time.

4.  The applicant is a 39-year-old national of Bangladesh who entered Hong Kong illegally on 1 August 2015 and was arrested by the police on 4 August 2015.  He raised a non-refoulement claim on 8 August 2015 on the basis that if he were to return to Bangladesh, he would be harmed or killed by the supporters of the rival political party Awami League. 

The Director’s decision

5.  By a Notice of Decision dated 1 November 2016, the Director rejected the applicant’s non-refoulement claim on all applicable grounds.

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board on 14 November 2016.  The Board considered that the applicant presented no credible evidence that he would be at real risk of persecution or being subjected to torture or that his life was at real risk.  The Board also assessed that even if there was such a risk, it would be avoidable if the applicant were to relocate to another place in Bangladesh and he has various viable options for relocation.  The appeal was dismissed on 24 August 2017.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 7 September 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board.

The judge’s decision

8.  The applicant did not state any grounds for his intended judicial review in the Form 86 and his affirmation.  The judge held that there was no error of law or procedural unfairness in the decisions of the Director and the Board, and both the Director and the Board had applied high standards of fairness in their consideration and assessment of the claim.  The judge considered that the applicant’s intended application for judicial review does not have any prospect of success and refused his leave application on 22 March 2019. 

The grounds of appeal

9.  In his summons and affirmation filed on 22 July 2019, the applicant stated that he was not satisfied with the judge’s refusal of his application, that all his statements were true and the judge did not write any cause about the refusal.

10.  In his written submission, the applicant stated as follows:

(1)  The Director and the Board had no practical knowledge, they did not investigate his claim in Bangladesh.

(2)  No lawyer helped him but it is his basic right to have a lawyer.

(3)  The Director only gave him the hearing bundle a few days before the hearing.  He did not have enough time and could not find his friend who can help him to read.

(4)  The hearing bundle is in English and he cannot read and write English.

(5)  The judge did not find error of law and the applicant did not get the order in a timely way so he could not file his appeal.

Analysis

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The judge’s order was made on 22 March 2019.  The applicant took out a summons in the court below on 29 April 2019.  He was late by 24 days, which is considered substantial.

13.  At the hearing before the judge on 24 May 2019, the applicant explained that he did not receive the letter from court informing him about the judge’s decision.  In his affirmation filed with the court below on 29 April 2019, he stated that an officer called him on 25 April 2019 and he got the court order on 26 April 2019.  He then filed the summons for extension of time on 29 April 2019. 

14.  The decision of the judge refusing the original leave application was sent to the applicant’s address, which was stated in his Form 86, on 22 March 2019 but the mail was unclaimed and returned.  It is the duty of a litigant to give the court an address so that correspondence or notice sent to him can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at §15). 

15.  The applicant’s delay was inexcusable.  In these circumstances, he must show a real prospect of success on the merits (Secretary for Justice v. Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125).

16.  In assessing the merits of this intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

17.  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 Country of Origin information 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.

18.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  The applicant’s complaints against the Director and the Board have not been canvassed at the Court of First Instance and he has not sought leave to put forward these new arguments.  Therefore, such new arguments will not be entertained by the Court of Appeal.  

20.  Further, contrary to the applicant’s assertion, the judge did set out the reasons for his refusal in paragraphs 11 to 14 of his decision dated 22 March 2019. 

21.  The applicant failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

22.  As the applicant does not have any prospect of success in the intended appeal, we dismiss the summons filed on 22 July 2019.