RE KHARSU NUMAN

CAMP 16/2019

[2019] HKCA 626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 16 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 168/2017)

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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):

Introduction

1.  On 18 August 2017, Deputy High Court Judge Woodcock refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 28 April 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 28 October 2015 and 8 November 2016 rejecting the applicant’s non-refoulement claim.

2.  On 16 November 2018, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to appeal against the said decision of DHCJ Woodcock out of time.

3.  By a summons dated 28 January 2019, the applicant sought leave from this Court to appeal against the said decision of DHCJ Bruno Chan out of time.

Background

4.  The applicant is a national of Bangladesh.  He entered Hong Kong on 22 July 2008 on the strength of his Bangladeshi passport, and was allowed to remain until 29 July 2008.  He overstayed and was arrested by the police on 2 February 2009.  He lodged a torture claim on 5 February 2009.  His torture claim was later taken to be a non-refoulement claim and was assessed under the unified screening mechanism. 

5.  The applicant’s claim was based on three sources of fear.  First, according to the applicant, he owned a stationery shop, and some customers of his left illegal firearms in his shop.  The firearms were later confiscated by the police and his customers demanded compensation from the applicant.  The applicant claimed that, if he returned to Bangladesh, he would be harmed or killed by his customers because he was unable to reimburse the customers.  Secondly, he and his friends were arrested by the police for drinking and a police officer was injured during the arrest.  Finally, the applicant claimed that, if returned, he would be harmed or killed by his family’s political rival.   The factual background was succinctly summarized by DHCJ Woodcock in [5] – [8] of the Form CALL-1 dated 18 August 2017.

6.  By two notices of decision dated 28 October 2015 and 8 November 2016[1], the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The former covered the BOR 3 risk[2], the persecution risk[3], and the torture risk[4], and the latter the BOR 2 risk[5].

7.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 9 December 2016.  After considering the applicant’s case, the Board found that the level of harm suffered by the applicant was not serious and did not attain the requisite level of severity.  The Board also found no evidence of the applicant’s customers acting in any official capacity.  The applicant’s arrest by the police was “inherent in or incidental to lawful sanction”. Apart from his own surmise, there was no evidence suggesting that the applicant was targeted by his family’s political rival.  Internal relocation was also considered to be a viable option for the applicant.  The Board dismissed the applicant’s appeal/petition on 28 April 2017 accordingly.

Leave for JR under HCAL 168/2017

8.  On 2 May 2017, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The form 86 did not contain any ground for seeking relief. In the affirmation in support of the leave application dated 2 May 2017, the applicant advanced various grounds for judicial review which are summarised below:

(1)  the Board failed to carry out sufficient research and inquiry into the Country of Origin Information (“COI”) and failed to have regard to relevant and up-to-date COI research;

(2)  the Board cherry-picked COI information and relied on outdated COI;

(3)  the Board failed to evaluate and make a finding as to whether Bangladesh shows a consistent pattern of violation of human rights;

(4)  the Board failed to analyse Bangladeshi state protection.  The Board misdirected itself on the law regarding the extended meaning of state protection;

(5)  the Board took into account incorrect facts and failed to give weight to facts favorable to the applicant;

(6)  the Board failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(7)  the Board applied incorrect standard of proof;

(8)  the duty lawyer failed at the first instance to give sufficient legal representation.

9.  In addition, the applicant gave the following particulars for some of the aforesaid grounds for judicial review:

(1)  The hearing bundle with documents all in English was provided to him just a few days before his appeal hearing before the Board and therefore with insufficient time for him to properly prepare for the hearing. The applicant was confused at the hearing and the Board wrongly concluded he was not credible;

(2)  The Board had relied on sources of news not officially recognized or were simply hearsay or outdated in arriving at groundless speculations that it would be safe for him to return to Bangladesh; and

(3)  The Board made a decision on BOR2 risk even though this part of the claim was not screened or judged by the Director.

10.  Upon the request of the applicant, an oral hearing was held on 4 August 2017.  After summarizing the background of the case and giving due consideration to the decision of the Board, DHCJ Woodcock refused to grant leave for the applicant to apply for judicial review.  Her reasons in refusing leave were set out in [14] – [19] of the Form CALL-1 as follows:

“ 14. I have considered with rigorous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. She analysed the material, claims and evidence carefully, logically and with caution. She also applied the correct standard of proof. The applicant’s complaints against her and the procedure undertaken are not made out. My findings also applied to the Director’s decision.

15. I found no substance in the grounds of this application. The applicant had nothing to add or supplement during the oral hearing except to say his problems at home have not been resolved, it was still dangerous there and his family are being tortured. He wanted an adjournment to obtain more documents to show the true situation in Bangladesh now. The government suppresses the bad news; there are a lot of murders, kidnapping, killings and political deaths. He said he would not have anything more to say if I did not grant him an adjournment. I refused an adjournment.

16. What is in the supporting affirmation does not cover all the grounds set out nor are they substantiated. For example, in the hearing before the adjudicator there is no record of any complaint from the applicant about his previous legal representation and his confusion. An interpreter was provided and at the applicant’s disposal; he confirmed he understood the procedure at the hearing. The Director and the adjudicator in their decision do refer to COI material they assessed and examined. The applicant’s criticism here is, as it is with most, but a bare assertion.

17. It is misleading to state the BOR 2 claim was dealt with by the TCAB adjudicator without having been ‘even screened or judged by the Immigration Department first’ (para 7, p 24). The Director’s BOR 2 decision was dated 8 November 2016 and the TCAB hearing was 9 December 2016 and Decision 28 April 2017.

18. I do not find any grounds that show there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19. In my judgment, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

Leave for JR under HCAL 939/2017

11.  Instead of bringing an appeal against the decision of DHCJ Woodcock in HCAL 168/2017, the applicant[6] filed another form 86 on 23 November 2017 seeking leave to apply for judicial review against the Board’s decision.   The case number was HCAL 939/2017.  In the supporting affirmation dated the same date, the applicant put forth the same 8 grounds for seeking relief as he did in his earlier leave application. However, the applicant did not draw the court’s attention to his earlier unsuccessful leave application.

12.  Upon the request of the applicant, an oral hearing was held before DHCJ Bruno Chan on 29 May 2018.  There the applicant explained the delay was due to his ignorance of law.  Again, he did not inform the judge of his earlier leave application, and apparently the judge was not aware of it.  After hearing the applicant and having due regard to the decisions of the Director and of the Board, the judge refused to grant leave for the applicant to apply for judicial review out of time. He held that the applicant’s explanation for the delay was unacceptable and the intended judicial review had no merits.  The reasons for refusing leave were set out in [14] – [20] of the Form CALL-1 dated 31 August 2018 (published as [2018] HKCFI 1926.

Application for extension of time under HCAL 168/2017

13.  Instead of seeking leave to appeal against the said decision of DHCJ Bruno Chan dated 31 August 2018 under HCAL 939/2017, the applicant took out a summons on 18 September 2018 under HCAL 168/2017 for an extension of time for appealing against the decision of DHCJ Woodcock dated 18 August 2017.  In his affirmation in support of the application, the applicant stated that he did not get the letter from the court, and that, when he was told by the Immigration Department of the result, he immediately applied for another judicial review, which was subsequently refused.  It was also deposed that he was advised that he had a good ground of appeal.

14.  The applicant’s application for extension of time was heard before DHCJ Bruno Chan on 24 October 2018.  In the decision dated 16 November 2018 (published as [2018] HKCFI 2422), the judge found that the delay of more than one year was substantial and excessive.  The explanation for the delay was not considered to be acceptable.  Since the applicant did not provide any proposed grounds of appeal, the judge was not satisfied that the intended appeal had any prospect of success.  The judge refused to grant extension of time for the applicant to appeal.

The renewed application

15.  More than 2 months later, the applicant took out a summons on 28 January 2019 seeking leave to appeal against the said decision of DHCJ Bruno Chan refusing extension of time for appealing.

16.  In his supporting affirmation of the same date, the applicant disposed that:

“ a) The Honourable Deputy High Court Judge Bruno Chan was wrong in law in holding that there was no state acquiescence or involvement.

b) The Honourable Deputy High Court Judge Bruno Chan failed to provide detailed reason in support of her decision.” (sic)

17.  The applicant had also put in a set of written submission dated 4 March 2019.  It referred to ST v Director of Immigration (sic) [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 for the discussions on the high standards of fairness, and to the common law duty to act fairly discussed in The Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D and Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217.

Legal principles

18.  Whilst it is technically possible to appeal against a lower court’s decision in refusing an extension of time for appealing, it is more straightforward and economical to renew the application for extension of time before the Court of Appeal: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal against the decision of DHCJ Woodcock out of time.

19.  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.

20.  Even if the court does not accept that the applicant’s explanation for 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.  The crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge.

21.  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 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, 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).

Discussion

22.  It took the applicant 13 months to apply for leave to appeal against the decision refusing him leave to apply for judicial review.  The delay is very substantial.

23.  As mentioned in [11] and [12] above, the applicant had made a 2^nd application for leave to apply for judicial review against the same decision of the Board.  This is an abuse of process: see Re Mamun Moihammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1]; Begum Khadija v Torture Claims Appeal Board [2018] HKCA 571 at [22]; and Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763 at [16]. The applicant cannot rely on his own abuse of the process to account for the delay.  We therefore hold that the applicant’s delay was inexcusable.

24.  We agree with the observations made by DHCJ Woodcock in her Form CALL-1 dated 18 August 2017. The general assertions advanced by the applicant cannot constitute valid grounds for challenging the Board’s decision: see Re Mizan Sikder [2019] HKCA 20.

25.  The applicant’s proposed grounds of appeal are clearly unarguable.  Given the facts of this case and the findings of the Board, there is no basis for the application of the concept of state acquiescence or involvement, whether active or passive, in the present case.  See Re Esmerez Maria Nieva Gelito [2018] HKCA 611.

26.  DHCJ Woodcock had given adequate reasons in her decision dated 18 August 2017.

27.  For these reasons, leave to apply for judicial review was correctly refused by DHCJ Woodcock.  We do not see any prospect of success in the intended appeal. 

28.  It would be futile to extend the time for a hopeless appeal.  The summons dated 28 January 2019 is dismissed accordingly.

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