RE BULO

CAMP 158/2019

[2020] HKCA 476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 158 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1584 OF 2018)

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J U D G M E N T

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

INTRODUCTION

1.  By a decision as set out in Form CALL-1 dated 14 March 2019 (“the Deputy Judge’s Decision”) [2019] HKCFI 619, Deputy High Court Judge K.W. Lung (“the Deputy Judge”) refused to grant leave to the applicant to apply for judicial review. 

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board/Non-Refoulement Claim Petition Office (“the Board”) dated 30 July 2018 (“the Board’s Decision) dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated respectively 26 October 2015 (“the Director’s First Decision”) and 15 March 2017 (“the Director’s Second Decision”).

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4.  The applicant issued a summons on 18 April 2019 before the Deputy Judge seeking leave to appeal the Deputy Judge’s Decision out of time.  Pursuant to Order 53 rule 3(4) of the Rules of High Court, the 14‑day period for him to lodge such appeal expired on 28 March 2019.  Thus, the application was 20 days out of time.  On 27 June 2019, the Deputy Judge refused his application to appeal out of time.

5.  The applicant now renews the application for extension of time by way of a summons dated 10 July 2019 (“the Summons”). 

6.  Pursuant to the directions of the Registrar of Civil Appeal given on 11 July 2019, the applicant lodged his written submissions on 29 July 2019.  Having considered the Summons and the applicant’s written submissions, we take the view that the renewed application can be disposed of on paper without an oral hearing.  This is our judgment.

BACKGROUND

7.  The applicant is a national of Bangladesh.  He first came to Hong Kong on 26 December 2004 as a visitor but overstayed.  He was arrested by the police in Hong Kong on 8 July 2009.  He lodged a torture claim on 11 July 2009, which was rejected by both the Director and the Board. His subsequent judicial review application against the Board succeeded and his torture claim was remitted back to the Director for fresh determination.  Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim.

8.  The details of the applicant’s claim and his personal background were set out in paragraphs 7-8 of the Director’s First Decision, and paragraphs 3-23 of the Board’s Decision.

9.  Briefly stated, the applicant claimed that if he were to return to Bangladesh, he would be harmed or killed by the secretary of Awami League (“AL”), Rahim.  The applicant claimed to be the general secretary of Jatiya Party (“JP”), leading around 20 members.  He was in charge of organizing weekly meetings to motivate villagers to support the JP.  Between 1991 and 2000, Rahim had been asking the applicant to join AL but the applicant had repeatedly refused.  Rahim was therefore angry at the applicant.  As a well-connected leader of a terrorist group in his area, Rahim was known for extortion and affiliated with the local police to frame villagers who failed to comply with his requests.  In 2001, the applicant was threatened by several men associated with Rahim.  In 2002, the threat escalated to a physical level when the applicant was taken to the police station and beaten up with batons and wooden sticks.  In 2004, Rahim came to the applicant’s house with 8 to10 masked men. Not only did Rahim hurt him but had also occupied his house.  The applicant had to leave for another village with his wife and children.  Eventually, he fled to Hong Kong.  Whilst he was in Hong Kong, his wife told him that she and their children were constantly verbally abused by Rahim for information concerning the applicant’s whereabouts.  Moreover, after the general election in 2014, the situation there has worsened as members who had previously opposed the AL have been treated badly.      

THE DIRECTOR’S DECISIONS AND THE BOARD’S DECISION

10.  By the Director’s Decisions, the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3] whilst the Director’s Second Decision assessed BOR 2 risk^[4]. 

11.  The applicant appealed the Director’s Decisions to the Board.  After the hearing on 5 May 2017, the Board dismissed the appeal. The Board considered the evidence produced by the applicant.  It considered the letter from one Mr. Hussain vouching the applicant’s experience in the police station without specifics and was purely hearsay evidence.  Based on the country of origin information and the fact that the applicant had been away from politics for 14 years, it was safe for him to return to Bangladesh.  The Board also dismissed his claim that his house was occupied by Rahim because the applicant’s wife and children were able to return to their house in 2005 and stay until 2010.  Further, the house was registered under the name of the applicant’s father and it was viable for them to take remedial measures if Rahim indeed took their house (paragraphs 52-55 of the Board’s Decision).  As a result, the Board was not convinced by the applicant’s version of events.  In any event, the Board found that state protection and internal relocation were available to the applicant (paragraphs 70-77 of the Board’s Decision).  Thus, the Board dismissed his appeal.

THE DEPUTY JUDGE’S DECISION

12.  On 9 August 2018, the applicant filed his Form 86 for leave to apply for judicial review against the Board’s Decision.  The intended grounds of review were summarized at [11] of the Deputy Judge’s Decision:

“11. In his affirmation in support of his application dated 9 August 2018, the applicant relied upon the grounds as set out below.

(1) The Board failed to maintain high standard of fairness because:

a. the Hearing Bundle (in English) was sent to the applicant shortly before the appealing hearing without translation for him;

b. he did not have sufficient time to prepare for the appeal and was without assistance;

c. the Adjudicator asked him similar questions as the Immigration officer had asked him and he was therefore unable to give accurate and clear answers, rendering his evidence not credible;

d. the Adjudicator failed to make proper arrangement by providing an interpreter for him to prepare the appeal and by adjourning the hearing to another date; and

e. the Adjudicator excused attendance of the Director, a practice that showed that the Adjudicator would not find fault with the Director’s Decisions.

(2) The Adjudicator had failed her duty of acting fairly.

(3) The Adjudicator had not taken into account that the applicant was not legally represented and that she had not told the applicant that he could complain.”

13.  The Deputy Judge heard the applicant on 10 January 2019 and dismissed the application for reasons set out at [12]-[18] of the Deputy Judge’s Decision:

“DISCUSSION

The Board’s Decision

12. The applicant appeared before me. He confirmed that he had no complaint against the Director or the Adjudicator. He was only dissatisfied with the Decisions that they made.

13. He also said that before the appeal hearing, he had his friend who explained the Hearing Bundle to him and that he had no problem at the appeal hearing.

14. In view of what he said in court, grounds (1)(a), (b) and (d) must fail.

15. Ground (1)(c) fails too because the Adjudicator was entitled to test the veracity of his evidence before the Immigration officer.

16. As to ground (1)(e), it is only his speculation without any evidence in support. If the Director considers that the applicant’s appeal was without ground, he might elect not to attend the appeal and made no submission to the Adjudicator. This ground fails.

17. Grounds (2) and (3) are the applicant’s opinion without any evidence to support.

18. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

EXTENSION OF TIME IN THE COURT BELOW

14.  On 18 April 2019, the applicant took out summons seeking leave to appeal against the Deputy Judge’s Decision out of time before the Deputy Judge.  He explained that he only received the Deputy Judge’s Decision on 17 April 2019.  However, the applicant did not advance any intended grounds of appeal. 

15.  By the decision dated 27 June 2019 [2019] HKCFI 1623, the Deputy Judge accepted that the length of delay was not serious but the applicant was unable to identify any alleged errors in the Deputy Judge’s Decision.  Thus, the Deputy Judge dismissed the summons on the basis that the intended appeal had no reasonable prospect of success. 

DISCUSSION

16.  This court has a discretion to extend time to appeal out of time.   The court however will only consider whether to do so after taking into matters such as (1) the length of delay, (2) the explanation of the delay, (3) the merits of the intended appeal, and (4) the prejudice to the respondent is time to appeal is extended.  See: Re MA [2019] HKCA 1020, at [14]-[15].

17.  In the Summons, the applicant repeated that he did not get the Deputy Judge’s Decision “timely”.  In his written submissions, he claimed that the screening system was wrong and that he did not have any legal assistance.  Other than that, he did not identify any errors in the Deputy Judge’s Decision.

18.  In our view, there is no merit in this application for extension of time.

19.  First, a delay of 20 days is a significant one, particularly so in light of the statutory 14-day appeal period provided under the rules.

20.  Second, the applicant’s claim that he had not received the Deputy Judge’s Decision “timely” is nothing but a bare assertion and not supported by any reasons or evidence.  There is therefore no good explanation for the delay.

21.  Third, for the following reasons, the intended appeal is hopeless.

22.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

23.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an 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 determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

24.  Further, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

25.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in the Deputy Judge’s Decision.

26.  However, the complaints the applicant has now made in support of this application that the screening system was wrong and that there was a lack of legal assistance are matters targeted at the Director’s Decisions and the Board’s Decision.  They do not relate to any identified errors of the Deputy Judge’s Decision.  These are therefore not viable grounds of appeal.   

27.  Further and in any event, the complaint that the screening system is wrong is nothing but a general and bare assertion and not supported by any particulars or specifics.  Moreover, the complaint of the lack of legal assistance also has no substance because this court has repeatedly emphasised that as a matter of law, a non‑refoulement claimant is not entitled to free legal representation at all stages of the process: See Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13]. 

28.  The intended appeal therefore has no merits at all. 

29.  For all the above reasons, we will refuse to extend time for the applicant to appeal the Deputy Judge’s Decision out of time, and dismiss the Summons.