RE MOSHSIN ALI

CACV 54/2018

[2018] HKCA 549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 54 OF 2018

(ON APPEAL FROM HCAL 400/2017)

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JUDGMENT

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Hon McWalters JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock (the “deputy judge”) dated 23 February 2018 refusing to grant him an extension of time to enable him to apply for leave to apply for judicial review of decisions made by the Director of Immigration (“the director”) and the Torture Claims Appeal Board (“the board”) arising from his non-refoulement claim.

2.  This appeal was originally listed for hearing on 26 July 2018 by a two-judge court[1]. At the time that a hearing date was fixed, the court also gave a direction for the lodging of skeleton submissions with an “unless order” that if the submissions were not lodged by 28 June 2018, the hearing date would be vacated and the appeal would be processed on the materials already filed by the applicant.  Notwithstanding this “unless order”, the applicant did not lodge his skeleton submission and his non-compliance with this direction is treated by the court as an abandonment of his right to an oral hearing[2].  Accordingly, the date set for the hearing of the appeal was vacated and the appeal is now dealt with on the materials already lodged.

The applicant’s background

3.  The applicant is a national of Bangladesh.  He first arrived in Hong Kong in January 2006 but was arrested by the police in March 2006 for overstaying.  He then lodged a refugee claim with the United Nations High Commissioner for Refugees but later withdrew this claim.  A removal order was made against him and he was removed from Hong Kong on 18 May 2006.  He then entered Hong Kong illegally on 18 June 2006 by using a passport under a different identity.  He was allowed to remain until 2 July 2006.  He departed Hong Kong for Mainland China on 1 July 2006.  Upon his return on 2 July 2006, he was permitted to stay until 16 July 2006 but did not depart upon the expiry of this period.  Subsequently, on 17 December 2007, he was arrested by the police for overstaying and as a result of the police investigation, his true identity became known.

4.  The applicant lodged his torture claim on 20 December 2007.  The claim was taken to be a non-refoulement claim upon the commencement of the unified screening mechanism in March 2014.

The applicant’s non-refoulement claim

5.  The applicant claimed that he used to own a shop selling fabrics and cloth materials and that persons associated with the Awami League (“AL”), the then ruling party in Bangladesh, began extorting protection money from him.  This started at the end of 1998 and continued to 2001 when the Bangladesh Nationalist Party (“BNP”) came to power.  At the end of 2002, 8 – 10 BNP people came to his shop and demanded he pay 50,000 Taka as protection money within one week and threatened to beat him up and burn his shop should he refuse.

6.  The applicant refused to pay and sought assistance from a Mr Hossain, the highest BNP member in that area.  Mr Hossain refused to help him and told him to pay the money.  He did so and continued to make payments until the end of November 2004. 

7.  Around the end of November 2004 he sought assistance from a minister of the BNP government.  This action angered Mr Hossain, whose people threatened to kill him and vandalize his house if he did not pay the money.  The applicant then fled to India and lived there until January 2006, after which he came to Hong Kong. 

8.  After being removed from Hong Kong to Bangladesh on 18 May 2006 the applicant’s brother told him that his problem with the BNP people had not been solved and that they were still looking for him.  The applicantdecided to return to Hong Kong. 

9.  His non-refoulement claim is based on the fear that if he returned to Bangladesh he would be harmed, or even killed, by the persons, who were extorting money from him.

10.  By a notice of decision dated 28 November 2014, the director rejected his claim.  The director’s decision covered the BOR 3 risk[3], the persecution risk[4], and the torture risk[5]. 

11.  The director noted that the applicant had not suffered any injury from the extortionists or encountered any threats after his return to Bangladesh in May 2006.  The director reasoned that since the applicant’s shop had been closed, the extortionists would no longer have any interest in him.  The director concluded that the low intensity and low frequency of past ill-treatment indicated a small future risk of harm, if any, to the applicant upon his return to Bangladesh. 

12.  The director also concluded that there was no indication that the state was involved in or was indifferent to or provided any form of encouragement to the persons who had been threatening the applicant and extorting money from him.  On the basis of country of origin information the director concluded that reasonable state protection would be available to the applicant upon his return to Bangladesh and that internal relocation would be a viable alternative.

13.  By a Notice of Further Decision dated 31 May 2017 the director rejected the applicant’s BOR 2 risk[6] claim.

14.  The applicant appealed to the board and it held an oral hearing on 5 November 2015 before dismissing the applicant’s appeal on 15 March 2017.  However, this appeal did not encompass the Further Decision of the director relating to BOR 2 risk. 

15.  Having heard the applicant, the board found that his evidence was unreliable and that he “lied just to achieve his aims.”  The board further found that, as admitted by the applicant, the extortionists did not belong to any political party.  Since the applicant had never attempted to seek assistance from any authority, there was no evidence of state acquiescence and the country of origin information demonstrated that reasonable state protection would be available to the applicant upon his return to Bangladesh.  The board also took into account the fact that the applicant had never been accused, charged, interrogated, arrested, detained, or imprisoned in Bangladesh and that he could depart Bangladesh without encountering any problem, and that he had never suffered any pain or mental ill-treatment.  In these circumstances, the board found that there would not be any real risk of ill-treatment if the applicant returned to Bangladesh.

The application for leave to apply for judicial review

16.  The applicant filed a Notice of application for leave to apply for judicial review (form 86) on 14 July 2017 in respect of the board’s decision but in his supporting affirmation dated the same date he indicated that he was complaining about the decisions of both the director and the board and seeking relief in respect of both of them. While the form 86 contained no grounds for seeking relief, the applicant advanced the following grounds in his affirmation: 

 (a) procedural impropriety—both the director and the board failed to find that the applicant’s fears “materialized”;

 (b) procedural impropriety—both the director and the board failed to realize the power of the ruling party; and

 (c) procedural impropriety—both the director and the board failed to conduct sufficient and independent inquiry into the relevant country of origin information (“COI”).

17.  An oral hearing was held on 8 November 2017. During the hearing, the deputy judge noted that the application for leave to apply for judicial review was made out of time.  The applicant explained to the deputyjudge that he had petitioned against the director’s decision rejecting his claim based on BOR 2 risk, and as that petition was still pending determination he was late in filing the application for leave to apply for judicial review.  The deputy judge did not accept the applicant’s explanation, saying:

“5. The applicant could give no details as to when he had lodged that appeal/petition with the TCAB except to say it was more than one month before the date of this application, this Form 86 dated 14 July. The applicant gave no details as to why that would cause him delay in filing this application on time. Ultimately, he presented no credible explanation or excuse for the delay.

6. The delay is not insignificant and there is no good reason for extending time.  Delay alone is enough to dispose of this application but the merits of the substantive application after perusal of the papers are in themselves weak.  Moreover, the application does not raise any questions of general public importance.  The extension of time sought is an abuse of process and ought to be refused.”

18.  Notwithstanding that she had refused the application for an extension of time, the deputy judge proceeded to assess the merits of the leave application but only in respect of the decision of the board.  She explained why she refused to consider the director’s decision:

“26. He does in his affirmation seek to judicial review the decisions of both the Director and the adjudicator. In my view, this is not the right course of action to take. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. There is no room for a judicial review of the Director’s decision. I have considered the grounds of his application against the decision of the TCAB only.”

19.  The deputy judge found that the intended application for judicial review had no realistic prospect of success and gave her reasons for that conclusion at paragraph 25 of the CALL-1 form:

“25. 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. He analysed the material, claim and evidence carefully, logically and with caution. The applicant’s complaints in the affirmation against him and the procedure undertaken are not made out. I find no substance in the grounds of this application. What was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.”

The Notice of Appeal

20.  In his Notice of Appeal filed on 2 March 2018, the applicant stated his ground of appeal as follows:

“ The verdict relied on old case laws and the plaintiff relocating backto his home will be impossible due to personal and external political factors involving in his home country.”

Discussion

21.  Recently, in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, the Court of Appeal held that an application for an extension of time is a discrete application separate from the application for leave under Order 53, rule 3 of the Rules of the High Court (Cap 4A) and that, for an application made outside the three-month time limit, an applicant must obtainan extension of time under Order 53, rule 4(1) before the application for leave can be entertained.

22.  The legal principles were summarised by Lam VP, in giving the judgment of the court, at paragraph 29 of his judgment.  He said:

“ We hold that the decision on the application for extension of time is a discrete application from the application for leave under Rule 3. For an application made within time and without delay, the application for leave falls to be considered by reference to the interest of the applicant in the matter (Section 21K(3) of HCO) and the reasonable arguability test (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). For an application made within the three-month time limit but not made promptly, extension of time is not required though the Court can refuse to grant leave on discretionary consideration based on hardship, prejudice or detriment to good administration. For an application made outside the three-month time limit, an applicant must obtain an extension of time under Rule 4(1) before the application for leave can be entertained.”

23.  The Court of Appeal further held that the decision refusing an extension of time is interlocutory in nature and consequently section 14AA of the High Court Ordinance (Cap 4) applies to it and so leave to appeal is required in respect of appealing such a decision.

24.  Accordingly, we shall first proceed with considering whether leave should be granted to the applicant to appeal against the deputy judge’s decision refusing the application for an extension of time to enable the applicant to apply for leave to apply for judicial review.

25.  In Kwok Cheuk Kin at paragraph 47, Lam VP described the decision on whether to grant an extension of time as an exercise of discretion involving a multi-faceted assessment.  He said of such a decision:

“ This Court will not disturb such assessment unless an applicant can pinpoint an error of law or principle, reliance on irrelevant consideration or failure to have regard to relevant consideration on the part of the first instance judge, or show that the decision is clearly wrong ….”

26.  In the present case, the deputy judge was correct in concluding that the delay is not insignificant.  Whilst, on its face, a delay of only one month may not seem an inordinate length of time, it has to be placed in the context of being a delay in respect of challenging a decision involving government administration and that there is a strong public interest in such challenges being made and dealt with expeditiously.  This is reflected in the duty imposed by Order 53, rule 4(1) on an applicant to make his application “promptly”.  Furthermore, in contradistinction to other time limits for taking judicial action the judicial review regime provides a generous three-month time limit to persons aggrieved by government decisions. 

27.  Within this context, it is not surprising that the judge concluded that the one-month delay was “not insignificant” and needed to be satisfactorily explained by the applicant in order to meet the requirement of Order 53, rule 4(1) that there is “good reason” for extending the time for the making of the application. 

28.  The applicant’s explanation for the delay is that he was awaiting the outcome of his petition to the board on the BOR 2 risk part of his claim. However, the applicant did not respond to the request of the director for any additional materials or facts in support of this claim and so he can hardly have been surprised that it was rejected.  Given that the board had already rejected his petition based on all the other risks and given that he had not relied on any new material or facts for his BOR 2 risk, he could not have been anticipating a favourable outcome from the board. 

29.  We agree with the deputy judge that the explanation given by the applicant was unsatisfactory.  The deputy judge gave reasons for not regarding the applicant’s explanation as providing her with the requisite “good reason” and we can detect no error in what she said; indeed we agree with her.  We can find nothing in her reasons to suggest that the exercise of her discretion may have, in any way, miscarried. 

30.  Notwithstanding that, as we have said before, the arguability of the intended appeal is an important consideration in an application for an extension of time.  In Gurung Min Bahadur [2018] HKCA 226 which also concerned a non-refoulement claimant seeking an extension of time in which to apply for judicial review, the Court of Appeal said:

“… The crucial consideration in this application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review. …”

We now turn to consider this question.

Merits of the intended application for judicial review

31.  Before examining the merits of the applicant’s judicial review we wish to address the position adopted by the deputy judge in respect of the director’s decision.  The deputy judge was of the view that as the administrative regime provided for an initial screening by the director and an appeal in the form of a rehearing by an independent body and as the applicant took advantage of the appeal option available to him, it was no longer open to him to challenge the director’s decision. 

32.  The judge is not alone in adopting this view of the legal position of CAT claimants who have pursued an appeal to the board.  The same view was adopted by Au Yeung J in Marticio Melcris Andoy v Torture Claims Appeal Board and anor[7].

33.  The rationale for this view is that appeal procedure provided an opportunity for a complete review of the decision by the primary decision maker and that review is in the nature of a rehearing in the sense that it is not dependent an appellate error being demonstrated.  The appeal tribunal itself examines and considers all the materials and reaches its own view on the merits of the claim.  In doing so it will have regard to any additional materials the claimant may wish to place before it.  In these circumstances, so the argument goes, the decision of the board supersedes the decision of the director.  A similar approach was taken by Lam J, as Lam VP then was, in Re Ng Kin Wo Johnny[8]when considering appeals by an aggrieved stall holder against a decision of the Director of Food and Environmental Hygiene and the decision of the Municipal Services Appeals Board dismissing his appeal of the director’s decision. 

34.  This approach is a well recognised one.  In De Smith’s Judicial Review, Eighth Edition, the learned authors say at chapter 3-029:

“A decision may be part of a two-tier process, so that an initial determination is superseded by a later one, with the effect that the first decision may no longer be challenged.”

35.  Torture claims are processed in accordance with the provisions of Part VIIC and Schedule 1A of the Immigration Ordinance, Cap 115.

36.  Section 37W of the Ordinance entitles a person to claim non-refoulement protection and section 37X lays down the procedures by which that claim is made.  Once the claim is made then section 37ZI(1) requires that, unless the claim is withdrawn, an immigration officer must “decide whether to –

 (a) accept the claim as substantiated; or

 (b) reject the claim.”

37.  The right of appeal to the board is set out in section 37ZR which provides:

“Appeal

A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under—

…

(b) section 37ZI(1)(b) (decision rejecting a torture claim); …”

38.  Section 37ZU states that Schedule 1A “has effect with respect to the Appeal Board and its members and to the proceedings of, and procedural and other matters concerning, the Appeal Board.”

39.  An important provision in Schedule 1A is section 18(1) which provides:

“(1) In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider—

(a) the same evidence that was before an immigration officer; and

(b) if subsection (2) applies, evidence that was not before an immigration officer.” (Emphasis added.)

40.  In order that it can “review the merits of the case” the board is given the power to administer oaths and affirmations and to “receive and consider any material by way of oral evidence (on oath or otherwise) or written statements or documents) (by affidavit or otherwise).”[9] It also has the power to direct a person to attend as a witness before it and to answer any questions, on oath or otherwise, or to produce any documents.[10]

41.  An important contextual element is that the board is presided over by a person who will usually be legally qualified and may even have judicial experience.  Section 2(2) of Schedule 1A provides:

“(2) The Chief Executive may appoint a person as a member if—

(a) the person was formerly a judge or magistrate;

(b) the person is qualified to practise as a barrister, solicitor or advocate in a court in Hong Kong or a common law jurisdiction having unlimited jurisdiction either in civil or criminal matters, and has so practiced for a period of or periods totalling not less than 5 years; or

(c) the person, in the opinion of the Chief Executive, is suitably qualified to be a member.”

42.  The board may confirm or reverse the decision of the immigration officer but “must give its decision with reasons in writing.”[11]  The board’s decision is final.

43.  It is clear that what is provided for by the Immigration Ordinance is a two tier administrative structure for the processing of torture claims.  The first tier is by an immigration officer and the second tier by a member of the board who will often, if not usually, be a legally qualified person and may be a former judge or magistrate.

44.  There are a number of important features of this two tier process:

(1) there is no limitation imposed on the board in carrying out its review function such as by being required to find appellate error before it can reverse the decision being reviewed;

(2) the board is independent of the Immigration Department and can receive new evidence that was not before the immigration officer;

(3) the board is presided over by a person with legal training;

(4) the unrestricted nature of the board’s review function, the powers it is given and the processes it employs provide an opportunity for a claimant to raise with the board any defect in the proceedings before the immigration officer and for the board to cure any such defect; and

(5) the board’s decision brings finality to the administrative processing of the claim by the provision of a reasoned decision.

45.  All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing.  For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.

46.  As we agree with the judge we shall now address the conclusion reached by her on the merits of the applicant’s application for leave to judicially review the decision of the board.

47.  Having reviewed the materials before us, we fully endorse the deputy judge’s conclusion that the intended application for judicial review had no realistic prospect of success.  Ultimately, the crucial issue is the evaluation of risk of harm in light of all the evidence before the board.  To the extent that this depended on an assessment of the applicant’s credibility the board was perfectly entitled to come to the adverse conclusion that it did, namely that the applicant was a liar who was seeking by his falsehoods to advance his interests.

48.  Furthermore, having reached this conclusion, it was plainly open to the board to hold that there was no substantial ground for believing that the applicant would face a real risk of being subject to ill-treatment of the kind which would meet the high threshold as required by law.

49.  As we have said many times before, evaluation of risk of harm is primarily a matter for the director and the board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment by the board in the hope that the court may consider the matter afresh in the absence of any legal error.[12] 

50.  We also note that both the board and the director adequately dealt with the issue of state acquiescence and state protection.  We can find no error in their reasoning by which they concluded that there was no evidence of state acquiescence and that state protection was available to the applicant. There is no reasonably arguable basis to challenge their conclusion on the alleged involvement of the ruling party.

51.  As the deputy judge rightly pointed out, the applicant gave no particulars as to how the director and the board mishandled the country of origin information materials.  There is no basis to challenge the decisions of the director and the board based on this ground. 

52.  As mentioned, we are of the view that the deputy judge’s observations in respect of the merits of the intended application for judicial review are justified.  We do not find any errors of law or procedure in the proceedings before the director or the board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  We agree with the deputy judge that there is no basis for granting leave to the applicant to apply for judicial review.

Conclusion

53.  For these reasons, we would not grant the applicant leave to appeal against the deputy judge’s decision refusing him an extension of time to apply for leave to apply for judicial review. 

54.  In the absence of an extension of time in which to apply for leave to apply for judicial review, this appeal is incompetent. Accordingly, we strike out the Notice of Appeal filed on 2 March 2018 and dismiss the appeal.