RE MD IMRAN

CAMP 33/2020

[2021] HKCA 424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 988 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 2 August 2019 (“the Decision”)[1], Deputy High Court Judge Josiah Lam (“the Judge”) refused to extend time for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board’s (“the Board’s 2014 decision”) and also refused him leave to apply for judicial review in respect of the Board’s decision dated 31 May 2018 (“the Board’s 2018 decision).  In the two decisions, the Board upheld the decision of the Director of Immigration (“the Director”) dated 28 July 2014 and 3 January 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 4 November 2019, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to appeal against the Decision.  By a summons dated 13 May 2020, the applicant renewed the application before this Court.

3.  Following H v Director of Immigration [2020] HKCFA 22, the refusal of an extension of time for an application for leave to apply for judicial review in respect of the Board’s 2014 decision is part and parcel of a refusal to grant leave for judicial review that falls within the terms of Order 59 rule 21(1)(g) of the Rules of the High Court (Cap. 4A) from which an appeal lies as of right and since delay is inevitable due to the clarification of the applicable law and procedures by the said Court of Final Appeal judgment, this Court will deal with the present application as an application for extension of time to appeal against the Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 19 May 2020, the applicant was directed to lodge his written submissions in support of his summons on or before 4 June 2020.  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 an oral hearing.

Background

6.  The applicant is a national of India.  He first came to Hong Kong as a visitor on 7 December 2007.  After taking a side trip to Mainland China on 21 December 2007, he came to Hong Kong again on 22 December 2007 and was permitted to stay until 5 January 2008.  He did not depart and overstayed since 6 January 2008.  He was arrested by the police on 28 February 2008 and was then transferred to the Immigration Department for investigation. On 15 March 2008, he raised his torture claim by way of written representation on the basis that if he were to return to India, he would be harmed or even killed by people from his girlfriend Sangeeta’s family in India as her family opposed to their relationship for the reason that he is a Muslim and Sangeeta is a Hindu.  He also alleged that Sangeeta’s family was rich and powerful and her father was a member of the Congress Party.  The factual background was succinctly summarized by the Judge at [2] – [4] of the Decision.

7.  By notice of decision dated 28 July 2014, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The Director’s decisions covered the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].   

8.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  The Board decided the appeal on papers and dismissed it on 24 November 2014.  The Board found the applicant’s case was about a private grudge and the alleged assaults of the applicant by the family of Sangeeta was not committed in the official capacity of the government nor instigated by them or with their connivance or acquiescence.  There was no medical evidence suggesting the applicant had suffered any serious injury for reaching the minimum level of severity.  The Board further found that the appeal was bound to fail independently for lack of credibility as he only raised his torture claim after his arrest by the police and there were procrastination and delays in his attending the screening interviews without reasonable excuse.  In any event, internal relocation would be a viable option as it was unlikely that his enemies would be able to locate the applicant after a long lapse of time. For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds. 

9.  The Director further assessed the applicant’s claim on the BOR 2 risk[5] and by the Notice of Further Decision dated 3 January 2017, his claim was also rejected.  The applicant appealed the Director’s further decision to the Board.  The appeal was heard on 10 April 2018.  After considering the applicant’s evidence, the Board found the applicant’s evidence evasive and incredible.  There would not be substantial risk of harm if refouled as the applicant had separated with Sangeeta for over 11 years (at the time of the Board’s hearing) and it was unlikely that his enemies would still spend all the resources to look for him and internal relocation would further minimize the risk.  Further, relevant COI showed that love affairs between Muslims and Hindus in India were not forbidden.  For the above reasons, the applicant’s appeal against the Director’s further decision was dismissed.

10.  On 1 June 2018, the applicant filed Form 86 together with his supporting affirmation for leave to apply for judicial review of the decisions of the Director and the Board.  It is well established that the decision of the immigration officer is not a decision that, within the administrative structure, is susceptible to judicial review once an appeal to the Board is pursued by the claimant, see Re Moshsin Ali, CACV 54/2018 at [45].  As such, the Judge only dealt with the grounds against the Adjudicator’s decisions as follows:

(1)  There was a lack of legal representation.

(2)  There was a lack of language assistance.

(3)  The appeal bundle was only provided to the applicant shortly before the Board’s hearing and the documents were not read to him.

The Decision below

11.  The Judge heard the case on 19 September 2018. By the Decision made on 2 August 2019, he decided to refuse leave for the judicial review in relation to the Board’s 2014 decision as the applicant failed to show any good reason to justify the substantial delay of 43 months. Regarding the Board’s 2018 decision, none of the complaints was reasonably arguable and thus leave was refused.  The detailed reasons were duly set out at [37] to [52] of the Decision:

“37. 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.

38. In the present case, the Board’s 2014 decision was issued on 24 November 2014. The Applicant only added that to his application for leave for judicial review in court on 19 September 2018. Excluding the 3-month grace period for filing, he was late for almost 43 months.

39. The Applicant said he did not receive the Board’s decision dated 24 November 2014. He did not make enquiry with either the Immigration Department or the Board because he did not know what to do. He also claimed he then remained sick for two years but there was no medical proof. He surrendered to the Immigration Department only in 2016.

40. The Applicant’s explanation was bare assertion and unconvincing. I do not accept he had any good reason for his delay in applying for leave for judicial review in relation to the Board’s 2014 decision. The delay was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. I refuse to grant extension of time for the Applicant to apply for leave for judicial review in relation to the Board's 2014 decision.

41. 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 37 above). The Applicant actually failed to state his complaints specific to the Board's 2014 decision. I dismiss his application for leave for judicial review in relation to the Board’s 2014 decision.

42. I now turn to the Applicant's application for leave for judicial review in relation to the Board's 2018 decision.

43. The Applicant complained there was a lack of legal representation.

44. 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.

45. In fact, the Applicant gave no further instruction to the Duty Lawyer Service (“DLS”) in May 2014 so the DLS had ceased to act for him from 29 May 2014.

46. The Applicant complained there was a lack of language assistance.

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

48. In any event, in the current application a friend helped the Applicant 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. The Applicant had much exaggerated his language problem.

49. The Applicant complained he received the appeal bundle only shortly before the Board hearing.

50. 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. There was no evidence the rules had been breached.

51. The Applicant complained the bundle was not read or explained to him. There was no evidence the interpreter in the Board hearing in April 2018 failed his/her duty. In any event, 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 had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

52.  I have reviewed the Board’s 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.”

12.  On 16 August 2019, the applicant filed a summons together with supporting affirmation seeking leave to appeal against the decision made by Deputy High Court Judge Josiah Lam in refusing leave under section 14AA of the High Court Ordinance (Cap. 4) to appeal against the Decision. As explained earlier, leave under section 14AA is not necessary by following H v Director of Immigration (supra) and we have processed the present application as an extension of time to appeal against the Decision. 

13.  In the applicant’s supporting affirmation, he advanced the following:

(i)       He had been deprived of opportunity to understand the judgements and to make proper ground of appeal.

(ii)      The judge has erred in determining that the lack of legal assistance is justified.

(iii)     He sought a re-hearing of his claim as his case has been determined unfairly.

(iv)     It was unfair to refuse to grant him leave and dismissed his summons.  His complaints of lack of language and legal assistance and his inability to make proper grounds of appeal had been ignored.

(v)      His unique circumstances as a non-refoulement claimant and his lack of familiarity of the Hong Kong authorities, his lack of language capability in understanding the judgments were not taken into account.

(vi)     Given his vulnerability has not been acknowledged and accepted, his case has not been determined fairly.

(vii)    This is not entirely relevant to whether high standards of fairness demand interpretation service being made available all the time to a non-refoulement claimant.  By dismissing of his claim for lack of language assistance, the court presumed all non-refoulement claimants are the same and did not take into account their actual unique circumstances and is therefore Wednesbury unreasonable.

(viii)   Interpretation service should be made available if the claimant is suffering as a result of the lack of service, for example, even till now he has not been provided with proper language assistance in understanding the judgments, nor has there been any solid evidence that he has been able to completely understand the judgments with the help he could get from his friends.

(ix)     He had to find someone to translate the contents of the decision but that was not professional help and hence he could not understand the judgment completely.

(x)      He was only directed by the staff at the High Court to issue a summons that requested for an extension of time, and was never directed at any stage of the proceedings that he had to provide draft or proposed ground of appeal.

(xi)     As far as he was concerned, the summons was only for the application for leave to appeal out of time be approved and it had nothing to do with the grounds of appeal and hence he only explained the delay.

(xii)      Should draft grounds of appeal be required, there should be further directions for him to do so rather than dismissing his application based on the lack of prospect, which was further due to the lack of directions.

(xiii)     Unless the judges made findings that he was in fact made aware of the content of the judgements or be given reasonable assistance in understanding the judgements as a self-represented non-refoulement claimant, then the judges could not dismiss of his case on the basis of not including any draft grounds of appeal.

(xiv)      This is a legal error as the court should have the duty and interest to ensure that the process had been procedurally fair.  The fact that there are no other revenues for a non-refoulement claimant to seek an appeal against a decision made purely against credibility was procedurally unfair.

(xv)      Should further submissions in relation to the grounds of appeal be required, he would seek further written submission with translation attached so that he can better understand the situation.

(xvi)     He requested that his case should proceed as with any other application for leave to apply for judicial review where suitable opportunity and time be given to him as a litigant who is self-represented.

Legal principles

14.  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 reason for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time was granted.

15.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would still examine if he has merit in the intended appeal.  Generally, an applicant must at least show that there is a reasonable prospect of success before extension of time is granted.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

16.  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).

17.  In this case, the lapse of time between the Decision and the applicant’s summons taken out before this Court was inevitably caused by the clarification of law by the Court of Final Appeal in H v Director of Immigration (supra), we would therefore excuse the delay.

18.  We now turn to review the Decision.

19.  In respect of the Board’s 2014 decisions, the applicant was delayed for almost 43 months in applying for leave for judicial review against the Board’s decision.   We agreed with the Judge that the delay was undue and substantial and the applicant’s explanation that he remained sick for two years but without any medical proof was not a reasonable and acceptable. Thus, a higher threshold on the merit is called for.

20.  Turning to the merit of the case, the applicant’s grounds of intended appeal as set out in his written submissions, in gist, are the lack of legal and language assistance and that the Judge paid no regards to his said incapacities and unfairly dismissed his case.

21.  This Court has repeatedly stated that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings, see Re Paswan Shibu Lal [2018] HKCA 249 at [21].  Also, it is trite that the high standard of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant, see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].  It is further noted that all court documents in relation to the judicial review application and this appeal were written in English, indicating either the applicant is familiar with the English language or that he has access or resources to such language assistance as needed.  We found none of the grounds of the intended appeal were validly made and his intended appeal is bound to fail.

22.  In any event, we have carefully reviewed the Board’s 2014 and 2018 decisions in which the Board had repeatedly found against the applicant on the issue of credibility and the two Board’s decision made similar conclusions that even if his case was accepted, it was no more than a private grudge without any state involvement.  It is within the province of the Board to reach to its findings and conclusions, which were well based and justified.

23.  We are satisfied that the Judge had considered the two Board’s decisions carefully and he did not err in finding no error of law or procedural unfairness or irregularities in them. In our judgment, there is no reasonable basis to challenge the Judge’s conclusion regarding the lack of merit in the intended judicial review.

24.  For the aforesaid reasons, we are not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, it would be futile to extend time for a hopeless appeal.  The summons dated 13 May 2020 is dismissed accordingly.

[1] [2019] HKCFI 1905

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.