RE MD SAHIN MIAH

CAMP 270/2019

[2020] HKCA 741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 270 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 740 OF 2018)

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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 the decision of 11 June 2019 (“the Decision”)[1], Deputy High Court Judge Josiah Lam (“DHCJ Lam”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 23 April 2018.  In the Board’s decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 28 November 2016 rejecting the applicant’s non - refoulement claim.

2.  On 18 July 2019, the applicant took out a summons for an extension of time to appeal against the Decision.  On 14 October 2019, Deputy High Court Judge Bruno Chan (“DHCJ Chan”) refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2].

3.  By a summons dated 25 October 2019, the applicant sought leave from this Court to appeal out of time against the Leave Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 30 October and 18 November 2019, the applicant was directed to lodge his written submissions in support of his summons on or before 4 December 2019.  The applicant lodged his written submissions as directed. 

5.  Under Order 59 rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally by boat on 3 April 2008 and was arrested by the police.  He was transferred to the Immigration Department on 5 April 2008 for investigation.  On 19 April 2008, the applicant lodged his non-refoulement claim by way of written representation on the basis that if he were to return to his country, he would be harmed or even killed by 3 members of the Bangladesh Nationalist Party (“BNP”) namely Tutul, Kiron and Rahman (the “3 BNP members”) and their followers because the applicant was a member of the rival Awami League (“AL”).  The applicant further claimed that his cousin who was also a supporter of the AL was killed by the 3 BNP members. The factual background was succinctly summarized by DHCJ Lam at [3] – [11] of the Decision.

7.  By a notice of decision dated 28 November 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The Director’s decisions covered the BOR 2 risk[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

8.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  After the hearing on 17 January 2018, the Board dismissed the appeal on 23 April 2018.  For the reasons and analysis stated in [44] – [52] of the Board’s decision, it found that the applicant had limited knowledge about the AL party and he had fabricated his case that he was sought by the BNP members because of his involvement with the AL.  Further, even the Board gave the benefit of doubt to the applicant for the suspected murder of his cousin by the 3 BNP members in 2007, there was no evidence that the 3 BNP members would still be interested in pursuing the applicant and/or the applicant’s family after 10 odd years of the suspected murder of the cousin.  As such, the Board did not see a real risk or substantial grounds for believing that the applicant would be subjected to risk of harm or torture upon his return to Bangladesh.  Further, relevant Country of origin information (“COI”) showed that AL is currently in power in Bangladesh and therefore, there would not be any state consent or acquiescence of any possible action taken by the BNP members.  For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds. 

9.  On 27 April 2018, the applicant filed Form 86 together with his supporting affirmation for leave to apply for judicial review against the Board’s decision.  The applicant set out the background of his case and some articles/provisions under International Covenant on Civil and Political Rights, Hong Kong Bill of Rights Ordinance, Cap. 383, Basic Law and United Nations Convention Against Torture.  He also advanced the following grounds in support of his intended challenge:

(1)  The Adjudicator misdirected herself on the law by taking into account that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.

(2)  The Adjudicator failed to carry out sufficient research and inquiry into COI of Bangladesh and his case was dismissed upon unfair procedure.

(3)  The Adjudicator failed to take into account and put proper weight on the relevant COI, cherry-picked COI and relied on outdated COI.  Therefore, the decision was Wednesbury unreasonable.

(4)  The Adjudicator failed to evaluate and make a finding of fact as to whether a consistent pattern of gross, flagrant or mass violations of human rights exist in Bangladesh.  Therefore, the decision was unreasonable.

(5)  The Adjudicator failed to analyse and assess whether state protection was available in Bangladesh and misdirected herself on the meaning of extended state protection.

(6)  The Adjudicator put weight on irrelevant, incorrect and inaccurate consideration and failed to put weight on facts and draw inferences that were favourable to the applicant’s case.

(7)  The Adjudicator failed to call for psychological and psychiatric report of the applicant.

(8)  The Adjudicator applied the incorrect standard of proof.

(9)  Lack of legal assistance and representation.

(10)  The appeal bundle was only provided a few days before the Board hearing and therefore, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation.

The Judgments below

10.  DHCJ Lam heard the case on 17 September 2018.  By the Decision made on 11 June 2019, he refused leave for the applicant to apply for judicial review after due consideration of the Director’s and Board’s decisions. The reasons were duly set out at [34] to [49] of the Decision:

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

35. 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.”

36. It was wrong for the Applicant to say the Director had not screened his claim with respect to BOR2 risk. The Director screened the Applicant's claim with respect to all the four applicable grounds including BOR2 risk in his decision dated 28 November 2016.

37. The Applicant had been represented by the Duty Lawyer Service (“DLS”) up to the Director's decision dated 28 November 2016. He complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

38. The Applicant complained there was a lack of or insufficient legal representation. 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. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

39. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by interpreters when he was represented by DLS and in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

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

41. 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.

42. The Applicant said he received the bundle on 10 January 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 17 January 2018. The bundle was served on the Applicant in time.

43. 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.

44. 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.

45. State protection and state acquiescence were not real issues as the Adjudicator did not find the Applicant's claim credible and did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.

46. For the same reason, there was no 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.

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

48. There was also no evidence the Adjudicator misdirected herself in law or adopted the wrong standard of proof.

49. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavor 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. She 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.”

11.  The 14-day period for the applicant to appeal the Decision, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 25 June 2019.  On 18 July 2019, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time. 

12.  The summons was heard on 20 August 2019 and by the Leave Decision made on 14 October 2019, DHCJ Chan refused the application for leave to appeal out of time.  On the issue of delay, although the applicant had delayed for 3 weeks in taking out the summons, DHCJ Chan accepted the applicant’s explanation that he had never received the Decision from the mail.  The court record showed that although the Decision was posted to him on 12 June 2019 (one day after the Decision was made), it had subsequently been returned through undelivered post which therefore caused the court to contact the Applicant to collect the decision on 2 July 2019.  Hence, DHCJ Chan took the view that the 14-day period should count as from 2 July 2019, so when the Applicant eventually filed his application on 18 July 2019, he was in fact late by only two days.  DHCJ Chan regarded the delay was insignificant and might be excused. 

13.  As for the merit of the intended appeal, the applicant claimed in his affirmation that DHCJ Lam erred in the Decision as follows:

(a)  that it failed to consider significance and level of unfairness the lack of language assistance had on him as a litigant which amounts to procedural unfairness;

(b)  that he was not given the necessary assistance in understanding the decision as he does not speak or write English;

(c)   that the lack of language assistance in enabling a claimant to understand his claim is discriminatory; and

(d)  that there was no reason or explanation why COI in support of his case were not accepted.  

14.  DHCJ Chan considered that the grounds were vague and general without any particulars or specifics or elaboration as to how they would apply to the Decision.  Besides, the applicant was assisted by an interpreter throughout the hearing of his application without any problem or complaint, and the fact that the Decision might not have been translated or interpreted to him afterwards could not be accepted as a proper ground of appeal.  As such DHCJ Chan did not find any of the grounds reasonably arguable, and in the absence of any errors in the Decision being clearly and properly identified by the applicant, he did not see any prospect of success in the intended appeal and thus dismissed the summons. 

The renewed application

15.  On 25 October 2019, the applicant filed a summons together with supporting affirmation seeking leave to appeal against the Leave Decision.  He did not provide any proposed ground for his intended appeal against the Decision in the summons or supporting affirmation.

16.  In his written submissions, the applicant stated that he had no complaint against the Judges.  He was only discontented with decisions of the Director and the Adjudicator as his problems were not properly investigated and his life and death situation was taken lightly.  He also complained that the Director did not consider his family, his education, political and economic status seriously.  Further, the lack of legal representation and assistance caused the Board and the Judges to dismiss his case casually.  Lastly, he urged the court to grant his application despite he did not provide any reason for his intended appeal against the Judges’ decisions due to his weakness and incapability.

Legal principles

17.  As rightly pointed out by Lam VP in Farrukh Zaib v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office & other [2020] HKCA 408 at [21], whilst it is technically possible to appeal against a lower court’s decision refusing an extension of time for appealing, it is more appropriate to renew the application for extension of time before the Court of Appeal[7].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal against the Decision of out of time.

18.  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.

19.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would 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. 

20.  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

21.  We agree with DHCJ Chan’s decision that the applicant’s delay might be excused and we would focus on the merit of the intended appeal.

22.  As the applicant failed to put forward any grounds of appeal against the Decision, with the legal principles stated in [20] of this judgment, his intended appeal is bound to fail.  

23.  Further, the applicant’s assertions against the Director and the Board were vague and with no particulars.  As had been said repeatedly, general assertions would not be enough to give rise to viable grounds of appeal in a matter of this nature: Re Mizan Sikder [2019] HKCA 20; Re Imbuh Karina Binti Yamroni [2019] HKCA 950.  Upon our careful review of the Board’s decision, we found that it had taken a joint endeavour to discuss the case with the applicant and had provided him with every opportunity to elaborate and clarify his case.  In our view, the Board had properly analysed and assessed the applicant’s case and it was perfectly open for it to reach its findings and conclusion as he did.  We do not see any error of law or procedural unfairness or irregularities in the Board’s decision that would warrant the court’s intervention.

24.  Lastly, the applicant’s complaints of lack of language and legal assistance had been canvassed and rightly rejected by DHCJ Lam in the Decision.[8]  

25.  In our judgment, nothing set out in the written submissions can be constituted as valid ground of the intended appeal.

26.  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 25 October 2019 is dismissed accordingly.

27.  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.