LOKMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 38/2019

[2019] HKCA 748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 38 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 811 OF 2017)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 27 July 2018, Deputy High Court Judge Woodcock refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.  On 5 March 2019, the judge refused to grant leave to the applicant to appeal against her decision out of time as there is no prospect of success in the intended appeal^[2].

3.  The applicant filed this renewed application with the Court of Appeal for leave to appeal against the judge’s decision out of time on 7 March 2019.  On 8 March 2019, directions were given by the Registrar of Civil Appeals for the applicant to file a submission on or before 26 March 2019. The deadline for filing a submission was extended to 7 May 2019 due to the statutory stay on account of the applicant’s application for legal aid.  He eventually filed his submission on 6 May 2019.  His application for legal aid was refused on 6 June 2019.

4.  Having considered the papers, we think it appropriate to exercise our power under Order 59 rule 2A(5) of the Rules of the High Court to determine this application on paper without an oral hearing.

5.  The applicant is a national of Bangladesh.  He came to Hong Kong in 1994.  He overstayed and was repatriated.  He came again and was deported in 2001.  He came to Hong Kong yet again in 2005 and was convicted for breach of deportation order and two counts of making false statement to Immigration officer.  He lodged a torture claim which was rejected on 27 July 2012 and he was deported on 3 September 2012^[3].  He was arrested again on 7 April 2016 for suspected immigration offences.  He was convicted of breach of deportation order and remaining in Hong Kong without the authority of the Director of Immigration (“the Director”) and was sentenced to 18 months’ imprisonment on 16 May 2016.  He lodged a non-refoulement claim 2 March 2017 on the basis that if he were to return to Bangladesh, he would be harmed or killed by certain members of Razakar as he refused to give them his ancestral land.

The Director’s decision

6.  By a Notice of Decision dated 30 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[4], BOR 2 risk^[5], BOR 3 risk^[6] and persecution risk^[7].

The Board’s decision

7.  The applicant attended the hearing of the appeal against the Director’s decision before the Board on 27 September 2017.  The Board found that the applicant made up the incident of abduction as he was still being detained in Hong Kong on the date of the alleged abduction.  The Board also assessed that the level of harm is low and the feared ill‑treatment is unlikely to materialize. It was also found that internal relocation alternatives and state protection are available which would lower or negate the perceived risk.  The Board decided that the applicant failed to establish his claim and dismissed the appeal on 6 October 2017.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 26 October 2017 to seek leave to apply for judicial review against the decision of the Board.

The judge’s decision

9.  Although a notice of hearing was issued to the applicant’s solicitors on 8 November 2017, the applicant was absent at the hearing on 16 January 2018.  Since the applicant had filed a notice to act in person and the notice of hearing was served on his previous solicitors instead, the judge adjourned the hearing to 15 March 2018 and the notice of hearing was sent to the applicant’s last known address.  The applicant was absent at the adjourned hearing.  The judge proceeded to consider the application on paper.

10.  The judge found the applicant’s grounds to be without merit or substance for the reasons stated in paragraphs 15 to 19 of the decision.  It was held that there was no error of law or procedural unfairness in the decision of the adjudicator and that the adjudicator has applied high standards of fairness in the consideration and assessment of the applicant’s claim.  The leave application was refused on 27 July 2018 accordingly.

The grounds of the intended appeal

11.  In the applicant’s written submission, he (1) stressed that high standards of fairness are required in the determination of a torture claim^[8] and (2) submitted that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility^[9].

Analysis and disposition

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account these factors: (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.

13.  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 27 July 2018.  He only took out a summons in the court below on 23 November 2018 to apply for leave to appeal out of time.  He was late by about 2.5 months (exclusive of the period of the summer vacation of the court)^[10]. The delay is considered substantial.

14.  In the summons of the present application and the affirmation filed on 7 March 2019, the applicant explained that he was imprisoned and could not inform the court about his change of correspondence address because he did not have the action number^[11].

15.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant^[12]. Even if it is considered an acceptable excuse for the delay in view of his imprisonment, the court would still assess whether the applicant can show reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[13].

16.  In assessing the merit of the intended appeal, the court would adopt the following legal principles in dealing with appeals of non‑refoulement cases^[14]:

(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 Country of Origin information (“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. 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.

(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.

17.  The applicant’s intended grounds of appeal are vague and without particulars.  The judge reviewed the adjudicator’s decision with rigorous examination and anxious scrutiny.  The judge provided detailed explanations for her decision.  The applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters or was otherwise plainly wrong.

18.  As the applicant failed to show any reasonable prospect of success in the intended appeal, we dismiss the summons filed on 7 March 2019.

19.  Further, as his renewed application is entirely without merit, we make a further order under Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be considered at an oral hearing inter partes.