RE SOHEL AND OTHERS

CAMP 214/2019

[2020] HKCA 411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 214 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 488 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

Introduction

1.  By a summons filed on 3 September 2019, the applicants renewed their applications for leave to appeal against the decision given by Deputy High Court Judge Bruno Chan (“the Judge”) on 24 May 2019 (“the Decision”) refusing to extend time for the applicants’ late applications for leave to apply for judicial review.  The intended judicial review was against two respective decisions of Torture Claims Appeal Board (“the Board”) both dated 24 August 2017, one against the 1^st applicant and the other one against the 2^nd and 3^rd applicants.

2.  The applicants’ leave application to appeal against the Decision was refused by the Judge on 21August 2019.

3.  The applicants now renew their leave applications before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 4 September 2019, the applicants lodged their joint written submissions on 18 September 2019. 

4.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The 1^st and 2^nd applicants are husband and wife and the 3^rd applicant is their son.  They were of different nationality and came from different countries on different occasions and made their own separate non-refoulement claim on different basis which were separately dealt with and assessed by the Immigration Department.  After their respective claim were rejected, they then made their appeal separately to the Board again on different grounds which were also dealt with separately by the Board.  After their appeals were dismissed by separate decisions of the Board, they jointly filed one single Form 86 for leave to apply for judicial review of the 2 respective decisions of the Board. 

The 1^st Applicant’s Claim

6.  The 1^st Applicant is a national of Bangladesh.  He entered Hong Kong illegally on 15 December 2013 and was arrested by the police on 15 January 2014.  He was then referred to the Immigration Department for investigation and on 17 January 2014, he lodged a non-refoulement claim on the basis that if he returned to Bangladesh, he would be harmed or killed by members/supporters of rival political party Awami League (“AL”) as he belonged to the opponent Bangladesh Nationalist Party (“BNP”). 

7.  By a Notice of Decision dated 27 November 2015, the Director decided against the 1^st applicant’s claim on BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 8 December 2016, the Director rejected the 1^st applicant’s claim on BOR 2 risk.

8. The 1^st applicant appealed to the Board.  After the hearing on 5 July 2017, the Board dismissed the appeal on 24 August 2017.  In its decision, the Board found the evidence of the 1^st applicant was vague and unreliable to be given any evidential weight.  His credibility was further undermined by the fact that he did not seek non-refoulemnt protection upon arrival in Hong Kong until after his arrest, that in any event it was not accepted that those AL people would still have any adverse interest in looking for him all over Bangladesh after all these years, and that there are places other than his home village such as Dhaka for him to live safely without undue hardship.  For the aforesaid reasons, the Board rejected his claim on all applicable grounds.

The 2^nd and 3^rd Applicants’ Claims

9.  The 2^nd applicant is an Indonesian.  She worked as a foreign domestic helper in Hong Kong in 2011 and after her second employment contract was prematurely terminated in April 2013, she was allowed an extension of stay pending a new contract, but when that did not materialize she overstayed in Hong Kong and formed a relationship with the 1^st applicant with whom she gave birth to the 3^rd applicant and subsequently they married in Hong Kong.

10.  On 15 January 2015, she was arrested by the police and raised a torture claim for herself and the 3^rd applicant on the basis that if they returned to Indonesia, they would be harmed or killed by her mother and her abusive step-father for her refusing to marry the man whom they had chosen for her and for marrying the 1^st applicant who is of different nationality and without their approval.

11.  By a Notice of Decision dated 27 November 2015, the Director decided against their claims on BOR 3 risk, the persecution risk, and the torture risk.  By a Further Decision dated 8 December 2016, the Director also rejected their claims under BOR 2 risk. 

12.  The 2^nd and 3^rd applicants appealed the Director’s decisions to the Board and by its decision on 24 August 2017, their appeal was dismissed for the reasons that the 2^nd applicant had not been inflicted with any severe pain or suffering that had attained the minimum severity under any of the applicable grounds, that in any event her case was about domestic violence and intra-family animosity over private matters with no official or state involvement.  Further, internal relocation was a viable option and it was not accepted that the 2^nd applicant’s parents would be interested in locating her and/or her son all over Indonesia in order to harm or kill them.

The Judge’s Decision

13.  On 26 March 2018, the applicants jointly filed their Form 86 for leave to apply for judicial review of both decisions of the Board, and put forward the following grounds for their intended challenge:

(1)     misdirection in law in that the adjudicator misdirected himself on the law by taking into account that applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in future;

(2)     procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;

(3)     irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

(4)     irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5)     irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6)     irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)     procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicants;

(8)     procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9)     procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicants resulting in unfair procedure.  

14.  By the time the applicants took out the application for leave to apply for judicial review (Form 86), it was beyond the three-month time limit as prescribed under Order 53, rule 4(1) of the Rules of High Court, Cap. 4A which was expired on 25 November 2017.

15.  The Judge heard the leave application on 18 January 2019 and by the Decision of 24 May 2019, he refused to grant an extension of time to apply for leave for judicial review for the applicants’ failure to provide good reasons for their delay and that their cases were devoid of merit.  The Judge’s reasons for his refusal were duly set out at [25] – [32] of the CALL - 1 Form:

“25. A delay of four months must be considered as substantial or excessive, and for which the applicants failed to provide any explanation either in their affirmation or at the hearing.  As such I am unable to find any valid reason for their serious delay.  

26.  As for the merits of their intended application with reference to their proposed grounds or complaints, most of them are just broad and vague assertions of the applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicants.

27.  Regarding their complaint that the adjudicator failed to take into account the relevant COI as to the current human rights circumstances in Bangladesh specifically (a) USHR 2010; (b) USRF 2010; and (c) The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Bangladesh” Autumn 2011, which they argue would have provided sufficient COI to corroborate their version of events and legitimate fear and to support a finding of a consistent pattern of human rights abuses in Bangladesh and that there is a lack of state protection, there is no evidence to suggest that the applicants or their lawyer did produce or refer to these documents at their appeal hearing, nor have they elaborated how they would have assisted or advanced their case either in their appeals before the Board or in their application now before me.

28.  In fact, upon close examination of those COI referred to in the decisions of the Director as to A1’s claim (§§42 – 44 and Appendix) and A2’s claim (§§41 – 43 and Appendix), and of the Board as to A1’s claim (§27) and as to A2 and A3 (§16) all of which show the latest situations respectively in Bangladesh and Indonesia as recently as in 2017, I do not find any basis or merits in the applicants’ complaints over the adjudicator’s assessment of COI, and I do not find any of them reasonably arguable for their intended application.

29.  The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given them insufficient time to prepare for their appeal.

30.  Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of their screening interviews and the Director’s decisions should be well familiar to the applicants as they had earlier all been already made available to them, and that they were then still legally represented by the same lawyer from DLS, whilst their NCFs were completed on their own instructions with legal assistance, and that at their respective oral hearing they never raised any issue or requested the adjudicator for further time to enable them to better prepare for their appeal.  In any event as noted above they were then still legally represented by DLS and no issue was ever taken by their lawyer with the hearing bundle either.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

31.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicants’ respective claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of their respective home country in Bangladesh or Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

32.  In the premises and having considered the decisions 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 applicants’ claim.”

The Renew Application

16.  By a summon together with supporting affirmation dated 3 June 2019, the applicants sought leave to appeal against the Decision.  The applicants did not provide any draft or proposed grounds of appeal in their summons nor in the 1^st applicant’s supporting affirmation which was made for an on behalf of all the applicants.  The 1^st applicant just mentioned in the affirmation that he was a genuine non-refoulement claimant and that he would face risk of life, torture and harassment if he were to return to Bangladesh.

17.  By the decision dated 21 August 2019, the Judge refused to grant leave under section 14AA of the High Court Ordinance, Cap. 4.  The Judge found no merit in the applicants’ case as they failed to pinpoint any error of law or procedural unfairness in the process of the Board and there was also no arguable basis to challenge the Decision.  As there was no prospect of success in the applicants’ intended appeal, the Judge dismissed the summons accordingly.

The Renew Application

18.  By the summons dated 3 September 2019 together with supporting affirmation, the applicants renewed the matter before us.   the applicants did not provide any grounds of appeal in their summons or affirmation.  In their joint written submissions, the 1^st applicant said that he had political problem in Bangladesh and he came to Hong Kong to save his life.  The 2^nd applicant repeated her case that she would be tortured by her family if she went back to Indonesia and her children would not be accepted by her family and the Indonesian society.  The applicants further complained that the Board made some procedural errors and errors of law.  They also complained for the lack of legal assistance and poor quality of the interpretation services at the interview/hearing before the immigration officer and the Adjudicator and that their cases might not be understood.

19.  We note that the joint written submissions mentioned the 4^th applicant who is the younger son of the 1^st and 2^nd applicants.  By the Decision, the Judge had deleted the younger son as an applicant from the proceedings as he was not a party in either of the other applicants’ claims before the Director or the Board, nor had any claim been made on his behalf by other applicants.  As such, we would only consider the 1^st, 2^nd and 3^rd applicants’ claims in this case.

Legal Principles

20.  In Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, the Court of Appeal held that the refusal to extend time for leave to apply for judicial review is interlocutory in nature. 

21.  According to section 14AA(1) of the High Court Ordinance (Cap. 4), no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted. Section 14AA(4) further provides that no leave to appeal shall be granted unless the court is satisfied that there is a reasonable prospect of success in the intended appeal, or that there is some other reason in the interests of justice that the intended appeal should be heard. 

22.  In assessing the prospect of success of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, we only need to highlight the following principles:

(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 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 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)     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 of appeal 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).

Discussion

23.  In our judgment, there is no prospect of success in the intended appeal.  It is clear that the Judge was correct in refusing to grant an extension of time for the applicants to apply for judicial review.  The applicants were 4 months late in making the application and in the absence of any good reason for the delay, the Judge was perfectly entitled to hold that the delay was substantial and inexcusable. 

24.  Regarding the complaints of lack of legal representations and poor quality of the interpretation services rendered at the interviews/hearings with the immigration officers and before the Adjudicator and that their stories might not be understood, we note that the applicants were represented by Duty Lawyer at the Board’s hearing and the Director was represented by government counsel. With the assistance of the legal representatives from both sides, we fail to see any difficulty for the Adjudicator to understand the applicant’s case.  We further note that the Adjudicator had set out the personal and factual backgrounds of the applicants in detail in the decisions and his analysis and findings were well based and explained.  The applicants’ complaints simply cannot stand.

25.  In any event, having read the materials available before us, we are of the view that the findings of the Board were well justified and we see no error of law or procedural unfairness.  We agree with the Judge that there is no prospect of success in the applicants’ intended application for judicial review. 

26.  In the circumstances, it would be futile to extend the time for a hopeless appeal to be brought.  Accordingly, we refuse the application for leave to appeal, and dismiss the applicants’ summons.

27.  Since the application is totally without merit, we further make an order under Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A) that the applicants may not request our determination to be reconsidered at an oral hearing.