RE MGU

CAMP 15/2019

[2019] HKCA 853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 15 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 117 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 10 October 2017 (“the Decision”), Deputy High Court Judge Marlene Ng (as she then was) (“the Judge”) refused to grant 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”) dated 24 March 2017. 

2.  On 23 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 25 January 2019.  Pursuant to the directions of the Registrar of Civil Appeals given on 28 January 2019 and 12 February 2019, the applicant should file his written submissions on or before 28 February 2019.  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 foot on 4 October 2012 and was arrested by the police on 17 August 2013.  He was then transferred to the Immigration Department for investigation and on 23 August 2013, 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 cousin Karimullah (“K”) as he had a dispute over the ownership of land with K.

5.  By a Notice of Decision dated 7 January 2016, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 3 risk, the persecution risk, and the torture risk.

6.  The applicant appealed to the Board. After the hearing on 25 November 2016, the Board dismissed the appeal on 24 March 2017 (“the Board’s Decision”). The Board found that the applicant’s case only involved a private land dispute with no evidence of any alleged hostile act instigated or authorised by the government. There was no evidence of official or passive acquiescence and the applicant had never been arrested, detained or imprisoned in Bangladesh. Further, the worst injury suffered by the applicant was to his left hand which required 8 stitches and painkiller injections, which was far from reaching the minimum level of severity or be constituted as torture. The applicant had failed to establish his non-refoulement claim on all applicable grounds.

The Judge’s Decision

7.  On 5 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 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)   applying incorrect standard of proof;

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

(v)   failing to provide duty lawyer at first instance so that the applicant did not have sufficient legal assistance; and

(vi)   failing to properly assessment if state protection existed in Bangladesh.

8.  On 10 October 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 [21] – [34] for her refusal to grant leave:

“Leave to apply for judicial review

21. I have considered with rigorous examination and anxious scrutiny the papers for the present application by MGU. I am unable to fault the TCAB adjudicator’s decision. He had analyzed the materials, claims and evidence, and applied the correct standard of proof. MGU’s complaints against him were not made out.

22. I found no substance in MGU’s grounds for the present application, and he had nothing to add or supplement at the oral hearing before me save to say that he did not wish to stay in Hong Kong indefinitely, and he would return to Bangladesh of his own accord (a) when AL would fall out of power and BNP would regain power, and (b) his problems in Bangladesh were resolved.

23. In respect of the grounds of review in paragraphs 3(a)(i) above (insufficient research and inquiry into COI materials), 3(b)(i) above (failure to take relevant or relevant parts of COI materials into account), and 3(c) above (failure to analyze and assess whether state protection existed under the extended meaning), the TCAB adjudicator had specifically addressed MGU's distrust of the police. But MGU was never arrested, detained or imprisoned in Bangladesh, and he did not report the incidents that happened to him to the Bangladeshi police and to seek protection from them. Further, the COI materials were recent and covered materials that supported MGU’s concern and others that showed some state protection and improvement in the delivery of justice. MGU had not shown what other COI material he had provided to the TCAB adjudicator that the latter failed to consider. In my view, these grounds were not arguable.

24. In respect of the ground of review in paragraph 3(b)(ii) above (failure to evaluate and make finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violation of human rights), Au J in ST v Betty Kwan & anor [2013] 3 HKC 87, 99 said as follows:

‘(1) The aim of the determination is to establish, among others, whether the individual concerned would be personally at risk of being subjected to torture (as understood under the CAT) in the country to which he or she would return. The exercise is a risk assessment. The risk must be “foreseeable, real and personal”. The risk needs not be highly probable, but it must be personal and present.

(2) The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not by itself constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the individual concerned would be personally at risk. Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture.’

25. The TCAB adjudicator found that the conflicts between K and MGU were private in nature. There was no evidence that the state was involved in those conflicts even when MGU voted for BNP and K belonged to AL. The mere fact that a person had connections with a political party did not mean that person’s act represented the official stance taken by that political party. There was no report to the police. MGU had never been arrested, detained or imprisoned in Bangladesh, and he departed Bangladesh via proper immigration channels at an international airport without any problem from the government. The TCAB adjudicator accepted that these considerations were not decisive, but at least they did no suggest MGU was targeted by the Bangladeshi government. In my view, there was no duty on the TCAB adjudicator to proceed further to consider the pattern of violations of human rights. This ground had no merits.

26. In respect of the ground of review in paragraphs 3(b) (i) above (failure to take relevant or relevant parts of COI materials into account, cherry-picking COI materials, taking into account COI materials that were of little or no relevance, and placing weight on outdated COI material) and 3(d) above (taking irrelevant considerations into account), there grounds contained no particulars and no merits.

27. In respect of the ground of review in paragraph 3(a)(iii) above (failure to call for psychological and psychiatric evaluation), MGU’s parents had never been injured. As for MGU himself, the TCAB adjudicator had found the physical injuries suffered by MGU did not amount to severe pain and physical suffering reaching the minimum level of severity required. Further, MGU was not disturbed by K and his men at Fakirapool, and the TCAB adjudicator found there was no foreseeable and real risk of torture in future. There was no need for the TCAB adjudicator to call for psychological and psychiatric evaluation.

28. In respect of the ground of review in paragraph 3(a)(ii) above (applying incorrect standard of proof), I found that the TCAB adjudicator correctly set out the law and applied the correct burden/standard of proof in his decision. There is no merit in this contention.

29. In respect of the ground of review in paragraph 3(a)(iv) above (failure of the assigned duty lawyer at the first instance), this ground had no particulars and no merits. The appeal, to TCAB was by way of rehearing.

30. In respect of Articles 4 and 7 and General Comment no 20 of the International Covenant on Civil and Political Rights, sections 5 and 8 and Articles 2 and 3 of BORO, MGU’s Form 86 and/or his affirmation had not stated how these provisions applied to him or how the TCAB adjudicator was at fault in relation to such provisions.

31. DOI was excused from the hearing before the TCAB adjudicator, and MGU was self-represented. However, DOI served the hearing bundle to facilitate such hearing before the TCAB adjudicator. Even thought there was complaints that the hearing bundle was served a few days before the hearing , I am unable to understand (a) why there were revised skeleton submissions by the DOI when they were excused from the hearing and (b) why it was alleged MGU answered all questions with honesty and it aggravated him that his credibility was found questionable when (i) MGU declined to give evidence at the hearing before the TCAB adjudicator except to say how he entered into Hong Kong, and (ii) the TCAB adjudicator made no finding on credibility on MGU’s evidence as to facts which he did not give.

32. MGU claimed there was insufficient time for him to prepare for the hearing as he was not legally represented and his English skills were limited (but most documents in the hearing bundle were in English). MGU claimed he was confused at the hearing as the bundle was not provided earlier or with interpretation. However, MGU was legally represented when he was assessed by the DOI, there was no suggestion that the hearing bundle for the appeal hearing contained documents other than what had been available when he was legally represented, eg the NCF, the record of the Interview, DOI’s decision, etc. In any event, at the hearing before the TCAB adjudicator, there was no record of any complaint from MGU about his lack of time to prepare and his confusion coming into and during the appeal hearing.

33. I am unable to find any grounds that showed there was an error of law by the TCAB adjudicator. I see no evidence of procedural unfairness or failure to adhere to a high standard of fairness. The TCAB adjudicator’s decision was not Wednesbury unreasonable.

34. In my view, MGU’s claim was not reasonably arguable. There was no realistic prospect of success, and I refuse leave for judicial review with no order as to costs.”

9.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 24 October 2017).  By the summons filed on 13 November 2018, he sought an extension of time to appeal against the Decision.  The Summons stated in gist as follows:

“The court has ordered that the leave application for leave to judicial review be refused with ordered no costs, as I did not get the ordered on time and as I am out of time. So I requesting for the time extension for the leave to be granted. Rest of the grounds are in the affirmation set.”

10.  In his supporting affirmation, the applicant claimed he did not get the Decision on time despite the fact that he put his residential address properly in the Form 86 and in his supporting affirmation. However, he admitted that he had properly received some court letters before. He also claimed that he was named MGU rather than his full name in the Decision. He further claimed as follows:

“I am a genuine Non-refoulement Claimant who faced all these dangerous problems and harassment and torture in Bangladesh. I am unable to find any place to stay safely in his country, so I fled abroad to save my life. I think I am the luckiest person who succeeded to escape from such danger and is still alive today.

I believe this Director of Immigration and the Adjudicator of Appeal Board reached the wrong decision in assessing his USM claim. How come the Director of Immigration and the Adjudicator rejected my claim without proper inquiry and without carefully understanding my situation? To understand my claim fairly, my immigration officer and the Adjudicator are invited to tour my country and ask those familiar with his case what real danger I would face if I am returned there.

The Director and the Adjudicator thought that because I had no proof of my statement. It is my humble request to the Court to exercise its discretion to allow me to appeal out of time.”

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 and his explanation that (a) the Decision did not address his full name and that (b) he did not receive the Decision on time were bare allegations unsupported by evidence and were not good reason for the delay.  The Judge also found no merit in the applicant’s claim and he also failed to advance any grounds of appeal in the summons or affirmation except repeating his arguments that was canvassed and addressed by the Judge in the Decision.  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 [16] – [19] of the Leave Decision.

The Renew Application

12.  By the summons dated 25 January 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 merit 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 substantial and the mere allegation that he did not receive the Decision was not a good reason for the delay.

17.  Therefore, the applicant must demonstrate 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 and plainly not arguable.

18.  The Board had rightly explained at [7] to [9] of its decision that the applicant’s case was premised on a private land dispute, the mere assertion that K was the general secretary of the Awami League of the branch in his home town village, even if true, did not advance his case.  Further, there was no evidence of any alleged hostile act as having been instigated or authorised by the national Government nor any evidence of state acquiescence.  We agree with the Judge that the Board’s decision was well found and there was no errors of law or procedural unfairness or irrationality in its decision.  

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 to the applicant’s grounds of review at [21] to [34] 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 25 January 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.