MIA MD DULAL v. TORTURE CLAIMS APPEAL BOARD

CAMP 128/2023, [2023] HKCA 668

On an Intended Appeal From [2022] HKCFI 2641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 128 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2171 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 26 August 2022 refusing to grant an extension of time for applying for leave for judicial review and refusing to grant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 16 June 2017.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 2 September 2015 refusing to allow the re-opening of the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh born in 1966.  He was arrested by the Hong Kong police on 26 February 2014 for illegally remaining in Hong Kong.  He raised a non-refoulement claim by written representation on 7 April 2014, based on the fear that if he returned to Bangladesh he would be harmed or even killed by the Ahmilik (also known as Awamis) Party because he had joined the Bangladesh National Party.

3.  On 16 June 2015, before submitting his non-refoulement claim form, the applicant gave written notice to the Director stating that he wished to withdraw his non-refoulement claim.  Accordingly, the Director took no further action on the applicant’s claim.

4.  By a written request dated 19 August 2015, however, the applicant requested for re-opening of his non-refoulement claim, stating that he had spoken to his brother in Bangladesh who informed him that his problem had not been solved and that if he returned to Bangladesh he would be killed.  In order to assess his request, the applicant was interviewed on 1 September 2015 by the staff of the Department of Immigration. 

5.  The re-opening of a withdrawn non-refoulement claim is governed by section 37ZE(1) and (2) of the Immigration Ordinance (Cap 115) which provide as follows:

“ 37ZE. Withdrawal of torture claim by claimant

(1) A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.

(2) Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that—

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re-open the claim.”

6.  By a notice of decision dated 2 September 2015, the Director decided not to accept that since the withdrawal of the applicant’s claim, there had been a change of circumstances that could not reasonably have been foreseen when the applicant gave the withdrawal notification, and decided not to re-open the applicant’s non-refoulement claim.

7.  The applicant appealed to the Board against the Director’s decision.  The Board considered the appeal based on the written materials without an oral hearing.  The Board found that the reasons advanced by the applicant for re-opening his claim were all hearsay and empty statements, noting that the applicant had not even asked his brother what change of circumstances there had been and why, and had not contacted any other person to verify the information.  The Board took the view that section 37ZE(2) was not satisfied and that there was no substance in the appeal.  Accordingly, in its written decision dated 16 June 2017, the Board dismissed the appeal. 

The Judge’s decisions in the court below

8.  On 9 October 2018, over a year after the expiry of the 3-month time limit prescribed by Order 53 rule 4 of the Rules of the High Court (Cap 4A) for judicial review, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  The grounds stated in that form and in the accompanying affirmation were that the decision to refuse his torture claim was unreasonable, and that the Director failed to consider all the matters raised in his claim or give adequate reasons for his decision.

9.  The Judge, having considered the application on the basis of the documents alone, issued his decision on 26 August 2022, refusing to extend time or to grant leave to apply for judicial review.  The reasons were set out at [15] – [19] of the Form CALL‑1 as follows:

“ 15. In the Applicant’s case, a delay of more than 1 year must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his such serious delay.

16. As for the merits of his intended application, as noted above the Applicant has also failed to put forth any proper or reasonably arguable basis for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in the process of his appeal to the Board or in its decision being clearly and properly identified by the Applicant, and given such bare, vague and uncorroborated assertions of the Applicant when he, as rightly observed by the Board, did not even bother to obtain further details and information from his brother during their telephone conversation for his alleged change of circumstances regarding his situation in Bangladesh since the withdrawal of his claim just 2 months ago, which looks suspicious to me just an attempt to block the deportation order thereafter made by the Director against him instead of any real change of circumstances as alleged that caused him to request to re-open his claim. As such and for the reasons given, I do not find any merits in his intended application either.

17. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18. In the premises and having considered the decision of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s request to re-open his non-refoulement claim.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

10.  The applicant again did not appeal within the 14-day time limit prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A) (which expired on 14 September 2022, as August is the court vacation and not counted), but took out a summons more than two months later, on 25 November 2022, to seek an extension of time to appeal against the decision of the Judge.  In the affirmation in support he stated that he did not get the decision on time.

11.  The Judge held a hearing of the application on 16 March 2023, but the applicant did not appear.  In his written decision handed down on 23 March 2023, the Judge noted that his decision had been sent by post on the day it was issued to the applicant’s last reported address without being returned undelivered.  In the result, the Judge refused to extend time as the applicant had not provided any good or valid reason for his delay and, more importantly, had not shown any prospect of success in his intended appeal.

The renewed application before this Court

12.  By summons filed on 28 March 2023, the applicant made an application to this court for extension of time for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  In the summons and the accompanying affirmation, the applicant stated that he did not receive the Judge’s decision in time through the post and only obtained it after searching online.

13.  The applicant lodged written submissions on 26 April 2023.  He stated that he would face a real risk to his life in Bangladesh.  He said there was procedural impropriety or unfairness because the decision-makers had failed to make sufficient inquiry into country of origin information and placed no weight on the document he submitted to show his position in the Party.  The remainder of the submissions contained quotations from cases or summaries of principles without any explanation as to how they apply to the applicant’s case.

14.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

15.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  The delay of more than two months in this case is substantial, and we do not think a proper explanation has been given for the delay.  In these circumstances the court will refuse to extend time unless there are real prospects of success in the intended appeal.

16.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  In the present case, the applicant had himself withdrawn his non-refoulement claim.  The re-opening of a withdrawn claim is governed by section 37ZE as set out above.  The questions of whether there had been an unforeseeable change of circumstances which could increase the prospect of success of the claim and whether there are special circumstances by reason of which it would be unjust not to re-open the claim are questions entrusted by the statute to the immigration officer and, on appeal, the Board.  In this case they concluded that the conditions for re-opening the claim were not satisfied.  In our view this is a conclusion that the Director and the Board, as the primary decision-makers, were entitled to come to, for the reasons they gave.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish any such public law grounds.

17.  Further, the role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any viable ground to show how the Judge is said to have erred in refusing to extend time and to grant leave for judicial review.  Having considered the materials available, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review. 

18.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.