RE MA

CAMP 53/2019

[2019] HKCA 1020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 53 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 103/2017)

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JUDGMENT

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

Introduction

1.  By a summons filed on 1 April 2019, the applicant renewed his application for an extension of time to appeal against the decision given by Deputy High Court Judge Woodcock (“the Judge”) on 29 September 2017 refusing leave to apply for judicial review. 

2.  The applicant’s application for an extension of time to appeal was refused by the Judge on 5 March 2019.

Background

3.  The applicant is a national of Bangladesh.  According to the records of the Immigration Department, the applicant had used different identities to enter Hong Kong in the past two decades.  He entered Hong Kong in 2000 by using a Bangladeshi passport under the identity of Hossain Md Delower.  He was arrested and convicted of overstaying in 2003.  He was sentenced to 2-month imprisonment and deported back to Bangladesh upon release from prison.  He entered Hong Kong in 2004 again by using another Bangladeshi passport under his current identity.  He was arrested on 6 April 2006 and was deported on the following day.  He entered Hong Kong yet again by using a Bangladeshi passport under the identity of Ahammed Amin on 18 November 2007.  He was permitted to remain until 25 November 2007.  He did not depart upon the expiry of his permission to remain and overstayed.  He approached the Immigration Department for an extension of stay on 7 April 2008.  Upon inquiry, it was confirmed that the current identity was his true identity.  The applicant lodged a torture claim on 14 October 2008. His claim was treated as a non-refoulement claim upon the commencement of the unified screening mechanism in March 2014.

4.  The applicant’s claim was based on the alleged fear that, if refouled, he would be harmed or killed by the supporters of the Bangladesh Nationalist Party because of his political affiliation with the Awami League.  He also claimed that his creditors would also harm or kill him because he was unable to repay a loan of 2 million taka. He said he lost the money by giving the same to a business contact in Hong Kong who subsequently disappeared.  The factual background was summarized in [3] – [10] of the Form CALL-1 dated 29 September 2017.

5.  By a notice of decision dated 31 December 2014, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

6.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claim Petition Office (“the Board”).  A hearing was held on 7 December 2015, and the applicant gave evidence before the Board.  The Board found the applicant’s evidence incredible.  Nor did the Board accept that his injuries attained the minimum level of severity.  It was also considered that state protection was available and that internal relocation was a viable option for him.  By a decision dated 14 March 2017, the Board determined the appeal against the applicant.  

7.  By another notice of decision dated 3 May 2017, the Director further assessed the applicant’s BOR 2 risk[4], and determined the risk against him.  The applicant did not appeal against this decision of the Director.

The Judge’s decisions

8.  On 27 March 2017, the applicant applied for leave to apply for judicial review against the decision of the Board.  He put forth the following grounds for judicial review in his affirmation filed on the same day:

(a)  High standards of fairness were required in the determination of a torture claim;

(b)  The Board failed to determine his claim by way of a joint endeavor, to treat the appeal as a rehearing, and to discharge the duty to make its own inquiry;

(c)  The Board failed to make an independent assessment of the relevant country conditions of Bangladesh; and

(d)  The Board erred in considering whether the applicant sustained torture in the past, and failed to consider the risk of torture in future.  It failed to consider the concept of state acquiescence.

9.  The Judge held an oral hearing on 1 September 2017.  After summarizing the background facts, and having regard to the decision of the Board, the Judge refused to grant leave to the applicant to apply for judicial review.  Her reasons were set out in [19] – [25] of the Form CALL-1 dated 29 September 2017 as follows:

“19.  I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. She analysed the material, claims and evidence carefully. She applied the correct standard and burden of proof. The applicant’s complaints against her and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

20.  I found no substance in the grounds of this application. There is no evidence she failed to treat the appeal as a rehearing of the entire case. This ground is not substantiated.

21.  It is alleged she failed to fully and properly consider the country’s condition. I am satisfied she sufficiently researched relevant and up-to-date material even though she rejected the applicant’s evidence and claim on credibility.

22.  The applicant says both the adjudicator and the Director did not consider the concept of extended state acquiescence or passive acquiescence. It is true the concepts were not specifically mentioned. The applicant in this case did not make any police report or seek help from any authority before he left Bangladesh. In any event, in this case there were express findings by the adjudicator on credibility. She rejected the factual foundation of the applicant’s case. There was no need to go forward to consider these concepts.

23.  The applicant did make oral submissions in this hearing and questioned why his injuries were not considered severe. He submitted he had a scar on his forehead from the incident. He did not agree that his injuries were insignificant. He was frustrated the adjudicator considered COI documents she referred to as believable. He seemed to suggest only a visit to Bangladesh would be convincing. He did not advance any grounds during the hearing.

24.  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.

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

10.  Over 16 months later, the applicant applied to the court for an extension of time to appeal against the said decision of the Judge.  In the summons and the supporting affirmation both filed on 9 January 2019, the applicant stated that he did not appeal against the Judge’s decision earlier because he did not receive the sealed order and the Form CALL-1 on time.  It was deposed in the affirmation that the Director and the Board erred in failing to make sufficient inquiry of his claim.  At the oral hearing held on 14 February 2019, the applicant further explained to the Judge that he did not lodge the appeal earlier because he did not know the procedure.

11.  In the decision handed down on 5 March 2019 ([2019] HKCFI 446; “the Extension of Time Decision”), the Judge refused to grant an extension of time on the ground that the delay was both substantial and inexcusable, and that there was no prospect of success in the intended appeal.

Renewed Application for Extension of Time

12.  As mentioned earlier, by a summons filed on 1 April 2019[5], the applicant renewed before this Court his application for leave to appeal out of time.  It was stated in the affirmation that the grounds for the application were as follows:

“(a)  The Honourable Deputy High Court Judge Woodcock was wrong in law in holding that there was no state acquiescence or involvement.

(b)  The Honourable Deputy High Court Judge Woodcock failed to provide detailed reason in support of her decision.”

13.  In his skeleton argument lodged on 14 May 2019, the applicant quoted passages from various legal authorities on the “high standards of fairness” required of a decision-maker in the determination of a non-refoulement claim. The applicant also referred to some Hong Kong and English case laws for the proposition that the decision maker has a “duty to act fairly.”

Legal principles

14.  Under Order 59, Rule 2B(3) of the Rules of the High Court (Cap 4A), an applicant has 14 days from the date of the refusal of leave to appeal to make application to this Court for a further application.  Thus, the time for renewing his application for an extension of time expired on 19 March 2019.  There is a delay of 13 days for the applicant to make this renewed application.

15.  It is well-established that, in the consideration of the application for leave to appeal out of time, the court will take into account the following factors in the exercise of its discretion (see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at 107; Re Monjur Hossain [2018] HKCA 476; Re Saqlain Muhammad [2018] HKCA 346):

(a)  The length of the delay;

(b)  The reasons for the delay;

(c)  The chance of success of the intended appeal; and

(d)  The prejudice to the other party.

16.  In Re Litoun Mounsy [2018] HKCA 537 at [11], and Re Mizan Sikder [2019] HKCA 20 at [13], this Court has set out the general principles which are applicable generally to appeals or intended appeals in non-refoulement cases.  Such general principles are to be borne in mind in assessing the prospect of success of the intended appeal.

Discussion

17.  It took the applicant over 16 months to apply for leave to appeal out of time.  In our view, the length of the delay is very substantial.  The applicant did not challenge the Judge’s finding that the delay was inexcusable.  We agree with the Judge in this respect.

18.  Therefore, the applicant must satisfy that the intended appeal has real prospect of success before extension of time will be granted: see Re Ansar Muhammad [2018] HKCA 227.

19.  In our judgment, the applicant does not meet that threshold.  Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success. 

20.  The Board rejected the applicant’s claim for non-refoulement protection in Hong Kong based on its finding against the applicant’s credibility and its assessment of the lack of severity of injuries, the availability of state protection, and viability of internal relocation.  As it has been explained in Re Litoun Mounsy, supra, at [11(a)] and Re Mizan Sikder, supra, at [13(a)], these findings are primarily within the province of the Board.  The court will not intervene by way of a judicial review unless they contain errors on public law grounds.

21.  Having considered the case with rigorous examination and anxious scrutiny, the Judge did not find any of such errors in the Board’s decision.

22.  We agree with the Judge that on the facts of this case and the Board’s adverse finding on the applicant’s credibility, there is no basis for the applicant to rely on the concept of state acquiescence or involvement, whether active or passive, in the present case: see Re Esmerez Maria Nieva Gelito [2018] HKCA 611 at [16] – [19].

23.  As it is apparent from the Form CALL-1 and the Extension of Time Decision, there is no merit in the applicant’s complaint that no detailed reasons were given by the Judge.

24.  For these reasons, we dismiss the summons of 1 April 2019. 

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