RE MD NAHID

CAMP 290/2019

[2020] HKCA 774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 290 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 938 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.  On 30 July 2019, by way of a decision (“DHCJ Lam’s Decision”) set out in Form CALL-1 ([2019] HKCFI 1902), Deputy High Court Judge Josiah Lam (“DHCJ Lam”):

(1)  refused to grant extension of time for 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 27 October 2014 (“the Board’s First Decision”); and

(2)  refused to grant leave to the applicant to apply for judicial review against the Board’s decision dated 14 May 2018 (“the Board’s Second Decision”).

2.  For convenience, we will refer to the first part of DHJC Lam’s Decision as the “First Part of DHCJ Lam’s Decision” and the second part of it as the “Second Part of DHCJ Lam’s Decision”.

3.  On 8 August 2019, the applicant took out a summons (“the CFI Summons”) requesting for “time extension for the leave to be granted”.  In the affirmation in support, he deposed that he wanted to appeal the order made by DHCJ Lam on 30 July 2019, and that he believed he had “good grounds of appeal”, without specifying what those grounds were.  He further deposed that he was a genuine non-refoulement claimant who “faced all these dangerous problems and harassment and torture” in his home country, and he fled abroad to save his life.  He also said he “believes this Director of Immigration and the Adjudicator of Appeal Board reached the wrong decision in assessing his USM claim”.  He said he would invite them to “tour [his] country and ask those familiar with his case what real danger [he] would face if I am returned there”.

4.  The CFI Summons was heard before DHCJ Bruno Chan on 5 September 2019.  The applicant did not appear at the hearing.  By way of a decision dated 4 November 2019 (“DHCJ Chan’s Decision”), DHCJ Bruno Chan refused to grant leave to the applicant [2019] HKCFI 2491.  In DHCJ Chan’s Decision, the learned judge treated the CFI Summons as an application for leave to appeal only against the First Part of DHCJ Lam’s Decision. He refused to grant leave as the applicant had failed to provide any good explanation for the delay in bringing the judicial review and that the intended appeal had no merits since the applicant had failed to raise any proper grounds in support of it.

5.  By a summons dated 15 November 2019 (“the CA Summons”), the applicant sought leave from the Court of Appeal to appeal DHCJ Lam’s Decision, although in his supporting affirmation, he listed DHCJ Chan’s Decision as the decision under challenge.

6.  Before we consider the CA Summons, it is necessary to first clarify some procedural matters.

7.  In relation to the First Part of DHCJ Lam’s Decision, under the law as it then stood, the applicant was required to obtain leave under section 14AA of the High Court Ordinance (Cap 4) before he could appeal against that part of DHCJ Lam’s Decision.

8.  However, on 14 July 2020, the Hong Kong Court of Final Appeal handed down the decision of H v Director of Immigration [2020] HKCFA 22, holding that leave under section 14AA is no longer required for an appeal against the refusal to grant extension of time to apply for judicial review in non-refoulement cases. An applicant therefore can now appeal as of right in those cases but should still comply with the time limit as prescribed under Order 53, rule 3(4) of the Rules of the High Court (“the RHC”).  Thus, when the applicant took out the CA Summons, he was out of time to do so as of right.

9.  In the circumstances, we will treat this application insofar as it relates to the First Part of DHCJ Lam’s Decision as the applicant’s application to appeal out of time against that.

10.  In relation to Second Part of DHCJ Lam’s Decision, under Order 53, rule 3(4) of the RHC, he had 14 days from the date of DHCJ Lam’s Decision to appeal as of right against that.  Thus, at that time when he took out the CFI Summons before DHCJ Bruno Chan, he was in fact within time to appeal that part of DHCJ Lam’s Decision as of right.  However, by the time of the CA Summons, he was already out of time to do so.  We will therefore treat this renewed application also as an application to appeal out of time against the Second Part of DHCJ Lam’s Decision.

11.  In short, this renewed application will be regarded as a renewed application to appeal out of time against DHCJ Lam’s Decision as a whole.

Background

12.  The applicant is a national of Bangladesh.  He entered Hong Kong on 22 May 2006 as a visitor and was permitted to stay until 5 June 2006.  He overstayed and was arrested on 30 August 2007.  He lodged a torture claim on 8 September 2007.

13.  The applicant’s claim was based on the fear that, if he was refouled to Bangladesh, he would be harmed or killed by members of the Awami League (“AL”) and the Bangladesh Nationalist Party (“BNP”) because he refused to join them.  The factual background was summarized at paragraph 13 of the Director’s decision dated 16 July 2014 (“the Director’s First Decision”) and paragraphs 7 - 8 of the Board’s First Decision.

14.  Briefly stated, the applicant claimed that he had a group of friends including one named Mollah.  All of them belonged to the student wing of AL.  In 2006, a national election was coming up and his friends split into two groups, with half of each joined AL and BNP respectively.  The applicant remained neutral because his family did not like politics.  Nevertheless, his friends from both parties threatened and attacked him for his refusal to join them.  Mollah also demanded him to join AL or else he would face a “big problem” although Mollah did not specify what the problem would be.  Out of fear, he fled to Hong Kong.

Decisions of the Director and the Board

15.  In the Board’s First Decision, the Board upheld the Director’s First Decision, which dismissed the applicant’s non-refoulement claim on BOR 3 risk[1], persecution risk[2], and torture risk[3].

16.  On 14 May 2018, after hearing the applicant, by way of the Board’s Second Decision, the Board dismissed the applicant’s appeal against the Director’s decision dated 10 January 2017 (“the Director’s Second Decision”) which covered the assessment of the applicant’s claim on BOR 2 risk[4].  The Board did not accept that after more than 12 years his friends were still looking for him.  In any event, internal relocation was available to the applicant (paragraph 13 of the Board’s Second Decision).

DHCJ Lam’s Decision

17.  On 25 May 2018, the applicant filed his Form 86 seeking leave to apply for judicial review against the Board’s Second Decision.  He also included the Board’s First Decision as a decision under challenge at the date of the hearing.  Nevertheless, the grounds in his supporting affirmation only targeted the Board’s Second Decision[5].  The grounds of review were succinctly summarized by DHCJ Lam at paragraphs 27 - 32 of DHCJ Lam’s Decision:

“Grounds of judicial review

27. In Form 86, the Applicant originally only mentioned the Board’s 2018 decision. He added the Board’s 2014 decision on the day of hearing, i.e. 20 September 2018. His grounds of review were, however, merely focused on the Board’s 2018 decision.

28. The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

29. The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.

30. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.

31. The Applicant complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation.

32. The Applicant also complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.”

18.  After hearing the applicant and reviewing the documents, DHCJ Lam refused to grant extension of time to the applicant to apply for judicial review against the Board’s First Decision given the unexplained long delay and lack of specific grounds challenging that decision (See [41] ‑ [44] of DHCJ Lam’s Decision).  He also refused to grant leave to the applicant to apply for judicial review against the Board’s Second Decision for lack of merits of the grounds of challenge (See [46] - [61] of DHCJ Lam’s Decision).  He set out his reasons at paragraphs 37 - 63 of DHCJ Lam’s Decision (footnote omitted):

“Discussion

37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

38. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘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 scrutinising 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.’

Late application for leave for judicial review of the Board’s 2014 decision

39. Order 53 rule 3(1) of the Rules of the High Court reads: –

No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

40. Order 53 rule 4(1) and (2) of the Rules of the High Court read: –

(1)  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2)  Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

41. It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time. The Applicant must provide good reason for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review. If the court is not satisfied that there is good reason for extending time, then no application for judicial review can be made in accordance with rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.

42. In the present case, the Board’s 2014 decision was issued on 27 October 2014. The Applicant only applied for leave for judicial review in court on 20 September 2018. Excluding the 3‑month grace period for filing, he was late for almost 44 months.

43. The Applicant failed to explain for his long delay. There was no good reason given. The Applicant did not state his grounds of review in relation to the Board’s 2014 decision either. The delay was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant.

44. The Court of Appeal has stated clearly that if an applicant could not give good reason for his delay, the court should not proceed to consider if leave should be granted or refused on other grounds (see para 41 above). In any event, the Applicant did not specify his complaints regarding the Board’s 2014 decision. I dismiss the Applicant’s application for leave for judicial review in relation to the Board’s 2014 decision.

45. I now turn to the Applicant’s application for leave for judicial review in relation to the Board’s 2018 decision, which must be read in conjunction with the Board’s 2014 decision.

46. The Applicant complained there were failures by the assigned duty lawyer. He gave no specifics. In fact, the Applicant gave no further instruction to the Duty Lawyer Service (‘DLS’) in January 2014 so the DLS had ceased to act for him since 24 January 2014.

47. The Applicant mentioned he was not legally represented for his appeal to the Board.

48. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. As said, the Applicant had given no further instruction to the Duty Lawyer Service (‘DLS’) since January 2014.

49. The Applicant raised his language problem.

50. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non‑refoulement claimant.

51. In the current application, the Applicant had a friend to prepare Form 86 and the affirmation for him in English. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. He was assisted by a qualified interpreter when he appeared before the Adjudicator in February 2018. The Applicant had much exaggerated his language problem.

52. The Applicant complained he received the appeal bundle only a few days before the Board hearing.

53. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

54. The Applicant said he received the appeal bundle on 5 February 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 12 February 2018. The bundle was served on the Applicant in time.

55. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first‑tier screening of his claim. The Applicant’s case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

56. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing on 12 February 2018.

57. The Applicant failed to show there was any necessity for the Adjudicator to call for psychological or psychiatric reports, or to make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.

58. The Adjudicator had considered the issues of state protection and state acquiescence. He found there was no question of state acquiescence and that reasonable state protection was available to the Applicant in any event. His findings were not Wednesbury unreasonable.

59. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.

60. There was no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.

61. I have reviewed the Board’s 2014 and 2018 decisions under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

62. The Applicant’s application for leave for judicial review in relation to the Board’s 2014 decision is late. He fails to show any good reason to justify the delay. There are no circumstances that oblige the court to consider his late application in relation to the Board’s 2014 decision. That part of his application is therefore dismissed.

63. As to the Applicant’s application for leave for judicial review in relation to the Board’s 2018 decision, his complaints are not reasonably arguable. He has no realistic prospects of success. I therefore refuse to grant him leave for judicial review for that part of his application.”

The CA Summons

19.  In support of the CA Summons, the applicant set out two grounds in the supporting affirmation that (a) DHCJ Bruno Chan was wrong in law in holding that there was no state acquiescence or involvement and (b) DHCJ Bruno Chan failed to provide detailed reason in support of his decision.  Other than that, he did not identify any errors in DHCJ Lam’s Decision.

20.  In his written submissions dated 24 December 2019[6], he advanced the arguments in support of the two grounds: for the first ground of appeal, he quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277[7] and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non-refoulement claim and, for the second ground of appeal, from The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243; and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 on the decision maker’s “duty to act fairly.”

Legal principles

21.  As mentioned above, under Order 53, rule 3(4) of the RHC, 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: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted.

22.  Generally, an applicant must at least show that there is a reasonable prospect of success before extension of time is granted even when the delay is excusable.  When the delay is inexcusable, the applicant must further show a real prospect of success before the court will consider granting an extension of time: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

23.  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 in non-refoulement cases discussed in 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].

24.  For the purpose of this application, we only need to highlight the following salient 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 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 RHC.

Discussion

25.  In relation to the delay, we note that the applicant was in fact within time to appeal DHCJ Lam’s Decision as of right when he first took out CFI Summons.  In light of the change of law regarding whether he was required to obtain leave to appeal as mentioned above, we are prepared to accept that the applicant’s delay in appealing DHCJ Lam’s Decision is excusable.  Thus, we will now turn to consider whether his intended appeal has a reasonable prospect of success.

26.  In our view, the applicant failed to show that his intended appeal has any prospect of success, let alone a reasonable one.

27.  First, the applicant has failed to advance any grounds of appeal against DHCJ Lam’s Decision.  In the premises, the intended appeal is bound to fail.

28.  Second, the two grounds stated in the supporting affirmation are also without any substance.  The applicant’s complaint in relation to DHCJ Bruno Chan’s finding on state involvement is misplaced.  DHCJ Bruno Chan was concerned with whether DHCJ Lam was correct in refusing to grant extension of time to apply for judicial review against the Board’s First Decision.  He was not required to make any findings in relation to state involvement or acquiescence, which was within the province of the primary decision makers, ie, the Director and the Board.  There is simply no question of DHCJ Bruno Chan erring in law in this respect.  This is not a viable ground of appeal.  Meanwhile, DHCJ Bruno Chan had given a thorough analysis of why the applicant’s intended appeal had no prospect of success.  It is therefore misconceived to argue that his decision did not have detailed reasons.

29.  Insofar as his written submissions are concerned, they are equally devoid of substance.  The arguments therein only related to general principles and complaints directed at the Director and the Board, which had been properly addressed in DHCJ Lam’s Decision.  As mentioned above, the applicant has not identified anything in this appeal to demonstrate why DHCJ Lam was wrong in his reasons.  These authorities therefore do not assist the applicant in this appeal.

30.  In any event, if the above grounds are all directed at DHCJ Lam’s Decision, after reviewing it, we are of the view that DHCJ Lam was plainly right in his detailed reasons in refusing to grant extension of time to the applicant to apply for judicial review against the Board’s First Decision and in refusing to grant leave to the applicant to judicially review the Board’s Second Decision.

31.  The intended appeal therefore has no merits at all.  Accordingly, we dismiss the CA Summons.  We further make no order as to costs.