RE BEPARI AOWAL

CAMP 112/2019

[2019] HKCA 1223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 112 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 216 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 28 July 2017 (“the Decision”), Deputy High Court Judge Woodcock (“DHCJ Woodcock”) refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 12 May 2017.

2.  On 20 May 2019, Deputy High Court Judge Bruno Chan (“DHCJ Chan”) refused to grant leave to the applicant to appeal out of time against the Decision of DHCJ Woodcock (“the Leave Decision”).

3.  The applicant now renews the leave application to this Court by way of a summons dated 3 June 2019. Pursuant to the directions of the Registrar of Civil Appeals given on 5 June 2019, the applicant filed his written submissions on 16 July 2019. The Registrar further directed that this Court will decide whether to determine the application on paper. As it is appropriate to do so, this application shall be determined on paper accordingly.

Background

4.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 13 July 2014 and was arrested by the police on the same day. On 18 July 2014, he raised his non-refoulement claim. The applicant’s claim was based on his alleged fear that he would be harmed or even killed by members of Awami League (“AL”) as he was a supporter of the opposition party, Bangladesh Nationalist Party (“BNP”) and he refused to join AL upon their request.

5.  By a Notice of Decision dated 13 May 2016, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 11 April 2017, the Director rejected the applicant’s claim on the BOR 2 risk.

6.  The applicant appealed to the Board.  After the hearing on 2 May 2017, the Board dismissed the applicant’s case on 12 May 2017.  At the hearing, the applicant only answered some initial questions and then refused to answer any more questions. The only evidence he gave was that he would be killed if he were to return to Bangladesh. In the absence of collaborating evidence, the Board found that there was no evidence suggesting that the applicant was harmed by the members of AL because of his support of BNP. The Board also found that the applicant had not be involved with the BNP at any deep and serious level and thus it was unlikely that he would be harmed or killed by the members of AL if he were to return to Bangladesh. For the aforesaid reasons, the Board rejected the applicant’s claim on all applicable grounds.

DHCJ Woodcock’s Decision

7.  On 19 May 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation, he set out extensive grounds of relief and in essence, he complained that the Board’s decision had errors of law, procedural unfairness, failure to apply the proper standard of proof and that the decision was Wednesbury unreasonable. He further contended that the Board did not give him sufficient time to prepare for his hearing because the bundle was only served on him several days before the hearing. There was also no legal and language assistance available to him.

8.  The hearing took place before DHCJ Woodcock on 25 July 2017 and a Bengali interpreter provided service to the applicant in court. On 28 July 2017, DHCJ Woodcock gave her decision refusing to grant leave to the applicant to apply for judicial review. After summarizing the background of the case, as well as the decisions of the Director and the Board, she gave the following reasons at [18] – [27] for her refusal to grant leave :

“Judicial Review

18. The test in granting leave for judicial review proceedings is whether the judicial review grounds are reasonably arguable with a realistic prospect of success.

19. The legal principles for judicial review are worth repeating. The court plays a supervisory role and will consider several crucial issues: were there any errors of law; did the procedures adopted at the hearing and the petition/appeal satisfy the high standard of fairness required and did the substantive decision satisfy the enhanced Wednesbury test.

20. The standard of review is that of “rigourous examination and anxious scrutiny” to ensure that the required high standards of high fairness have been met. (See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 45)

21. This court set down a date for an oral hearing as requested. The applicant’s Form 86 sets out for grounds on which relief is sought; namely there were errors of law, procedural unfairness, failure to apply the proper standard of proof and the decision was Wednesbury unreasonable.

22. However, what is in the supporting affirmation does not cover all the grounds set out. What the applicant complains of is that the TCAB did not give him sufficient time to prepare for his hearing because the bundle was only served on him several days before the hearing date. He complains no one was arranged to translate the bundle to him prior to either hearing. At the hearing, the applicant was explained his rights and provided with an interpreter. There was no complaint and no indication from the applicant he was confused in terms of what was happening during the hearing, he was ill-prepared for needed help nor did he object to the COI material. There was no complaint before the adjudicator he was poorly represented by the duty lawyer earlier. There is no record of any complaint from the applicant. He clearly understood the procedure explained to him. There is no substance in this ground.

23. The applicant, in his supporting affidavit, claims he answered all the questions of the adjudicator honestly and “it aggravates him that his credibility was found questionable”. This is very misleading and plainly wrong; before the adjudicator, he neither elected to give evidence nor answer questions.

24. He claimed the Immigration Department did not screen or make a decision on his Art 2 BOR claim therefore making a procedural error. He submits as it was not decided upon the adjudicator could not rehear this claim. In the papers, the adjudicator specifically refers to the Director’s decision to dismiss the BOR 2 risk. The applicant was sent a Notice of Further Decision dated 11 April 2017 informing him of the Director’s decision on that claim. The Director did canvass the applicant’s further submissions prior to that decision. That claim also failed.

25. The adjudicator and the director considered the COI material and the evidence of the applicant’s claim submitted. They independently assessed the claims and found them unsubstantiated. His oral submission the decision makers did not examine his claims properly could not be further from the truth; they were detailed and thorough.

26. I find both the director and the adjudicator’s decisions far from faulty. They clearly analyzed the claims carefully and applied the correct standard of proof. I find the decisions of both the Director and the adjudicator legal, rational (not Wednesbury irrational) and made without procedural impropriety.

27. I am not satisfied the application is reasonably arguable with a realistic prospect of success; therefore, leave to apply for judicial review is refused.”

9.  By a summon dated 20 November 2018, the applicant sought leave to appeal against the Decision out of time, as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A) had expired on 11 September 2017. In his supporting affirmation, he explained that he was in prison at the material time for breaching his condition of stay and was later detained at the Immigration Department CIC Centre, hence he did not file his appeal until after he was informed by his friend of the Decision.

DHCJ Chan’s Decision

10.  The summons was heard before DHCJ Chan on 15 March 2019 and by the Leave Decision, the summons was dismissed.  DHCJ Chan did not accept the applicant’s explanation for his substantial delay of more than 14 months in seeking leave to appeal against the Decision. The applicant did not provide any particulars as to exactly when he was imprisoned or detained, nor did he produce any documentary evidence in support of his case. Further, the applicant filed another Form 86 on 7 November 2017 under HCAL 855/2017 for leave to judicially review the Board’s decision, which application was subsequently refused by Campbell-Moffat J on 29 November 2018 on the basis that it had been heard by DHCJ Woodcock and hence she had no locus to rehear it. DHCJ Chan noted that the applicant provided his correspondence address in Yuen Long which contradicted his claim of being in prison or detention at that time. Even if the applicant had been in prison or was being detained at that time, he was still able to launch his second leave application. In the absence of any good explanation for his delay in applying for leave for judicial review and any valid grounds to support his intended appeal, DHCJ Chan dismissed the summons accordingly.

The Renewed Application

11.  By the summons dated 3 June 2019, the applicant renewed the matter before us in which he complained that DHCJ Woodcock refused his claim without cause and he did not receive the Decision timely.  In his written submissions, he reiterated his complaints as advanced before DHCJ Woodcock (see paragraph 7 of this judgment).

Legal Principles

12.  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.

13.  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. 

14.  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). 

Discussion

15.  We agree with DHCJ Chan that the applicant’s explanation for his substantial delay in applying for leave to appeal against the Decision was unsatisfactory and unconvincing. On the issue of merits of the underlying application, what was set out in the applicant’s written submissions were canvassed and duly rejected by DHCJ Woodcock in the Decision. In the absence of any proper ground to pinpoint any errors of law or procedures of the Decision, the intended appeal is bound to fail. 

16.  Further, we have reviewed the Board’s decision and are satisfied that the Board had carefully and fully assessed the applicant’s claim and his case was dismissed for his failure to adduce any oral or documentary evidence to substantiate his claim. It was open to the Board to come to its findings and conclusion and we find no errors of law or procedural unfairness or irrationality in the decision of the Board. We agree with DHCJ Woodcock that the applicant’s application was not reasonably arguable and he had no reasonable prospect of success. 

17.  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.  The summons dated 3 June 2019 is dismissed accordingly.

18.  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.