RE KHAN ZAINUL ABEDIN

CAMP 33/2019

[2019] HKCA 857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 810 OF 2017)

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J U D G M E N T

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

Introduction

1.  By a decision dated 3 August 2018 (“the Decision”), Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 19 October 2017. 

2.  On 23 January 2019, the Judge refused to grant an extension of time to the applicant to appeal against the Decision (“the Leave Decision”).

3.  The applicant now renews the application for an extension of time to appeal against the Decision to this Court by way of a summons dated 27 February 2019.  Pursuant to the directions of the Registrar of Civil Appeals (“the Registrar”) given on 28 February 2019 and 20 March 2019, the applicant filed his written submissions on 8 April 2019. The Registrar further directed that it is for this Court to decide whether to determine the application on paper.  We consider it appropriate to determine this application on paper and we do so accordingly.

Background

4.  The applicant is an Indian national.  He came to Hong Kong as a visitor on 31 March 2013 and was permitted to stay until 26 May 2013.  He did not depart and has overstayed since 27 May 2013.  He was arrested by the police on 7 August 2014 and was then transferred to the Immigration Department for investigation.  The applicant lodged his non-refoulement protection claim on 9 August 2014 on the basis that if he were to return to India, he would be harmed or even killed by supporters of rival political party Trinamool Congress Party (“TMC”) as he belonged to the Communist Party of India (Marxist) (“CPI”). 

5.  By a Notice of Decision dated 7 July 2016, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 15 March 2017, the Director rejected the applicant’s claim on the BOR 2 risk.

The Judge’s decision

7.  On 26 October 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decisions and he advanced the following grounds for his intended challenge:

(1)   the Board had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)   the Board had acted in a procedurally unfair manner in deciding with the applicant’s appeal;

(3)   the Board’s decision to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness;

(4)   the Board had failed to meet the greater care and duty owed to a self-represented claimant; and

(5)   the Board had significantly relied on the source of news not officially recognized or were hearsay.

8.  In the applicant’s supporting affirmation, he repeated the background of his case and the grounds of his intended challenge as stated in Form 86.

9.  On 3 August 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge gave the following reasons at [11] to [15] for his refusal to grant leave:

“11. These are all very broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to his case such as how the Board had unlawfully fettered its discretion, or in what way were its decisions unreasonable or irrational in the public law sense, or which COI were not officially recognized or were simply hearsay.

12. The only discernable elaboration of procedural unfairness that the applicant has made is his complaint of the hearing bundle being provided to him just six days before the appeal hearing before the Board, and with the majority of the documents in English including the Director’s skeleton submission thereby giving him insufficient time to find an interpreter and to prepare for his appeal.

13. Even assuming that that was indeed the case, and I note that there were no documentary evidence produced by the applicant such as the letter from the Director which accompanied the bundle, it is plain that most of the documents including his NCF, records of his screening interviews and the Director’s decisions were already made available to him earlier when he was still having legal representation and hence with which he would be well familiar, whilst at his oral hearing before the Board he was well assisted by an interpreter during which he never raised any issue about the hearing bundle or requested for more time to prepare for his appeal. I do not see anything amiss arising from the hearing bundle or that he had been prejudiced as a result.

14. Nevertheless and having proceeded to consider 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 applicant’s claim.

15.   For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

10.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 17 August 2018).  By a summons filed on 19 October 2018, he sought an extension of time to appeal against the Decision.  In his supporting affirmation, he explained that he was never served with the court order and hence he was not aware of the time limit to lodge the appeal.  He explained to the Judge at the hearing for his leave application that he had since July 2018 been detained by the Immigration Department and he was unable to lodge his notice of appeal within time. 

11.  By the Leave Decision, the Judge refused to grant an extension of time on the basis that: (i) the applicant was significantly out of time; (ii) his reason for the delay was not valid and acceptable as it transpired that the decision was sent to him well before his detention and that he was subsequently still able to issue his summons under detention; and (iii) the applicant failed to provide any grounds for his intended appeal and there was plainly no prospect of success in his application, see [4] and [7] of the Leave Decision.

The Renew Application

12.  By the summons dated 27 February 2019, the applicant renewed the matter before us.  The applicant did not advance any grounds of appeal in the summons or in his supporting affirmation.  In his written submissions filed on 8 April 2019, he complained of the following:

(i)   lack of sufficient and consistent language assistance; and

(ii)   the Judge had failed to consider the Country of Origin Information (“COI”) in a fair manner and cherry-picked information that was unfavourable to his case.

Legal Principles

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

14.  Even if the court does not accept that the applicant’s explanation for the delay is reasonable, the court should still examine if he has merit in the intended appeal, see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

15.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in 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, the salient principles are as follows:

(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 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).  In the applicant’s written submissions, he reiterated the background of his case and his fear of being harmed or killed if refouled to his home country.

Discussion

16.  We are of the view that the delay of 2 months in taking out the summons for an extension of time to appeal against the Decision was substantial.  We also agree with the Judge that the applicant had failed to provide any good reason to explain for the delay.

17.  Turing to the merit of the case, the two grounds of complaints set out in the written submissions were canvassed by the Judge at [11] and [12] of the Decision and were duly rejected.   It is trite that the high standard of fairness required by law would not entail an interpretation services being made available at any time the applicant desired, see Re Matloob Hassam [2018] HKCA 708 at [11]. It is further noted that all court documents in relation to the judicial review application and this appeal were written in English, indicating either the applicant was familiar with the English language or that he has access to such language assistance as needed.  

18.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection on the ground that the applicant failed to establish that he had been subject to threats and intimidation by TMC members and the account of his story was implausible. The Judge, after rigorous examination and anxious scrutiny, did not find any error of law or procedural unfairness in either the Director’s and the Board’s decisions, nor any failure on their part to adhere to the high standard of fairness in their consideration and assessment of the applicant’s claim.  We agree with Judge’s findings and conclusions.  For the reason we mentioned in paragraph 15(1) of this judgement, we concluded that the applicant’s complaint against the Judge’s failure to properly consider COI when assessing his case is not a valid ground of appeal. 

19.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal. 

Conclusion

20.  The summons dated 27 February 2019 is dismissed accordingly.

21.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.