RE JEWEL

CAMP 11/2020

[2020] HKCA 487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 11 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 918/2018)

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J U D G M E N T

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

1.  On 15 August 2019, DHCJ Josiah Lam 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/Non-Refoulement Claims Petition Office (“the Board”) concerning his non‑refoulement protection claim. On 10 October 2019, the applicant applied for leave to appeal against the aforesaid decision of DHCJ Josiah Lam out of time. His application was refused by DHCJ Bruno Chan on 6 January 2020.[1]

2.  The applicant filed an application with the Court of Appeal on 17 January 2020 for leave to appeal against the decision of DHCJ Bruno Chan. Notwithstanding the formulation of the relief sought in the summons of 17 January 2020, we believe the applicant intends to seek leave to appeal against the order of DHCJ Josiah Lam dated 15 August 2019.

3.  We shall process the summons as a renewed application for extension of time to appeal against the decision of 15 August 2019.

Background

4.  The applicant is a national of Bangladesh.  The basis of the Applicant’s claim for non-refoulement arose from his role as a hirer of a bus in a traffic accident.[2] The Applicant hired a public bus in December 2004  from Raju Sikder (“Raju”).  He employed a driver to operate the bus.  On 10 October 2005, the bus collided with a truck, resulting in the deaths of three passengers and a pedestrian.  The father of the pedestrian accused the Applicant and Raju of killing his son deliberately.  As a result, he alleged he faced threats of prosecution for murder and threats of harm from Raju who had demanded the Applicant to pay compensation for damage to the bus. 

5.  The Applicant left Bangladesh for China on 15 December 2005 and entered Hong Kong as a visitor on 19 December 2005.  He was permitted to stay for 14 days but he overstayed.  The Applicant was eventually arrested by the police in Hong Kong on 25 June 2006.  He later used the name of Rohim Abdul to file a torture claim.  However, this was a false identity and he was later convicted on 7 September 2006 of attempting to mislead a police officer. 

6.  On 3 October 2006, the Applicant filed his torture claim by his current name, Jewel.  The claim was rejected by the Director of Immigration (“the Director”) on 22 August 2012.

7.  On 15 October 2012, the Torture Claims Appeal Board/Non-refoulment Claims Petition Office rejected the Applicant’s appeal against the Director’s decision on torture claim.  The Applicant subsequently failed to report to the Director on 7 December 2012.

8.  On 1 July 2013, the Applicant raised another non-refoulement claim by way of written representation.  He surrendered to the Immigration Department on 18 November 2013.

The Director’s decisions

9.  By his decision dated 22 August 2012, the Director rejected the Applicant’s torture claim (“the Director’s 2012 decision”). 

10.  In his decision dated 22 August 2016, the Director did not accept the Applicant faced any persecution risk[3] or BOR 3 risk[4] and rejected the Applicant’s non-refoulement claim on these two applicable grounds (“the Director’s 2016 decision”).

11.  On 18 July 2017, the Director rejected the Applicant’s non-refoulement claim with respect to the last applicable ground, i.e. BOR 2 risk[5] (“the Director’s 2017 decision”).

The Board’s decisions

12.  On 15 October 2012, the Board rejected the Applicant’s appeal against the Director’s 2012 decision on torture claim.[6]

13.  On 12 January 2018, the Board held a hearing with the Applicant for his appeal against the Director’s 2016 and 2017 decisions.  The Board gave its decision on 7 May 2018.  The Board accepted that the Applicant was involved in a bus accident in 2005 and absconded.  Thought accepting that the Applicant was pursued by the police and Raju, the Board found that the Applicant had fled Bangladesh for fear of Raju.  It considered if the Applicant had surrendered to the Bangladeshi police, he would be remanded and be safe from Raju.  Whilst he would face trial in respect of the charges against him, the Board considered that he could give evidence of what actually happened in due process before a competent court in Bangladesh.  If he is convicted, he could be relocated upon release after serving his imprisonment.  The Board was not satisfied that Raju could track down the Applicant.

14.  Thus, the Board rejected the Applicant’s claim with respect to the three other applicable grounds – persecution risk, BOR 2 risk and BOR 3 risk (“the Board’s decision”).

The intended judicial review

15.  The applicant filed a Form 86 and affirmation on 24 May 2018 to seek leave to apply for judicial review against the Board’s decision.  The grounds advanced by him was summarized by DHCJ Josiah Lam at [31] to [33] of the Form CALL-1 [2019] HKCFI 2024.  Procedurally, he complained about lack of legal representation and language problem.  He also complained about the Board’s questioning his credibility and the Board’s reliance on outdated materials.

16.  DHCJ Josiah Lam heard the applicant on 29 August 2018.  He reviewed the Board’s decision with rigorous examination and anxious scrutiny.  In his decision of 15 August 2019, the judge concluded that the Board’s findings and decision were premised on proper foundation and were not Wednesbury unreasonable.  In addition, the Board made no errors of law and there was no procedural unfairness[7].

17.  The leave application was refused on 15 August 2019.

The current application

18.  The only ground set out in the present summons is that the order of DHCJ Bruno Chan dated 6 January 2020 was unfair.  The Applicant’s supporting affirmation filed on 17 January 2020[8] merely stated that his “statements are true”.  Neither the Applicant’s summons dated 10 October 2019 nor his affirmation in support set out any ground suggesting that the DHCJ Josiah Lam had made any errors of law or had failed to take account of relevant matters or was otherwise plainly wrong.

19.  In his written submissions dated 10 February 2020, the Applicant submitted that: (1) he worked for the Bangladesh Awami League which was the enemy of the Bangladesh Nationalist Party (“BNP”) and that if he were caught by the BNP, his life would be endangered (“Submission 1”); (2) there was procedural unfairness – his lawyer did not assist him in respect of the appeal to the Board, he had insufficient time to prepare for the hearing, the interpreter did not interpret to him the documents in the hearing bundle (“Submission 2”) and (3) the Adjudicator played the role of his opposition by asking him questions during the hearing and therefore he could not give a correct decision (“Submission 3”).

General Principles

20.  The general principles adopted by this Court in determining an appeal for non-refoulement cases were summarized in Nupur Mst v Director of Immigration [2018] HKCA 524 at §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 the 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 were 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)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489.

(4)  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(5)  Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6)  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).

21.  Furthermore, in considering whether to extend time for appealing against a decision refusing leave to apply judicial review, the court will take into account (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.

22.  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 to apply for judicial review within 14 days after such order, which in this case was 14 September 2019 (after discounting the month for August 2019 on account of the Court’s summer vacation).  The Applicant was late by almost four weeks in lodging his intended appeal. 

23.  In the Applicant’s affirmation filed on 10 October 2019, he explained that he never received the decision in the mail and was only told about it when he made enquiry at the court on 10 October 2019 and was only then given a copy.

24.  However, at the hearing before DHCJ Bruno Chan, the Applicant informed the Court that he had in fact received the decision in the mail but that it was put in the wrong mailbox of his neighbor.  It was only much later that his neighbour returned the letter containing the decision to him and by then he was already out of time with his intended appeal.[9] When the Court pointed out this discrepancy, the Applicant blamed it on the friend who helped him with the preparation of the affirmation.[10]

25.  DHCJ Bruno Chan was not satisfied that the reason provided by the Applicant was valid or good reason for his delay. [11] We agree.

26.  In addition, and as stated above, the Applicant had at no stage provided any draft or proposed grounds of appeal or pinpointed any error in the decision of DHCJ Josiah Lam.  In those circumstances, DHCJ Bruno Chan was entirely correct in saying the intended appeal was hopeless.

27.  We have explained above, as well as in many other similar cases, that this Court will not generally entertain any argument which had not been canvassed at the Court of First Instance.  Submissions 1 and 3 are new and unsubstantiated allegations.  Further, given the nature of the hearing before the Board, there is nothing wrong or improper for the Adjudicator to ask the Applicants questions.  We reject these submissions.

28.  Submission 2 regarding procedural unfairness has been advanced before and duly rejected by DHCJ Josiah Lam and we agree with the judge’s observation in this respect.[12]

29.  We agree with DHCJ Bruno Chan that the intended appeal has no prospect of success and in the circumstances it would be futile to grant extension of time.  

30.  We dismiss the summons of 17 January 2020 accordingly.