RE UDDIN IMTIAZ

CAMP 278/2019

[2020] HKCA 743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 278 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 272 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 25 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 7 July 2017. In the Board’s decision, it upheld the decisions of the Director of Immigration (“the Director”) dated 9 March 2016 and 16 May 2017 rejecting the applicant’s non-refoulement claim.

2.  On 5 September 2019, the applicant took out a summons for an extension of time to appeal against the Decision.  On 4 November 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 6 November 2019, the applicant sought leave from this Court to appeal against the Leave Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 7 and 27 November 2019, the applicant was directed to lodge his written submissions in support of his summons on or before 13 December 2019.  The applicant failed to lodge his written submissions as directed. 

5.  The Registrar further directed that unless the applicant lodged his written submissions by that time, he would be debarred from lodging any written submissions, and his application for extension of time to appeal shall be determined on the basis of the summons and the affirmation filed in support. 

6.  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 and the supporting affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

7.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 16 December 2013 and was arrested by the police on 18 December 2013.  He was then transferred to the Immigration Department for investigation.  He lodged his claim on the ground of torture or cruel, inhuman, or degrading treatment or punishment (“CIDTP”) made by way of written representation on 21 December 2013.  Upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014, his claim was taken to be a non-refoulement claim which was assessed under the USM.  The applicant’s claim was made on the basis that if he were to return to Bangladesh, he would be harmed or killed by the members of the Awami League as he was a member of rival political party Jamaat-e-Islami.  The factual background was succinctly summarized by DHCJ Lam at the Decision at [1] to [4].

8.  By the Notice of Decision of 9 March 2016 and the Notice of Further Decision of 16 May 2017, the Director assessed the applicant’s claim on all applicable grounds and determined them against him.  The Director’s decision covered the BOR 2 risk[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

9.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  After the hearing on 10 April 2017, the Board dismissed the appeal on 7 July 2017.  The Board found that the applicant was not an honest and reliable witness and that his appeal failed independently on the issue of credibility.  The Board did not find the applicant a genuine asylum seeker as he did not raise any claim on his arrival in Mainland China nor did he do so for half a year when he was in Hong Kong.  The Board took a further view that even on the basis of the applicant’s account of event, he did not suffer any serious physical or mental harm before he left Bangladesh. Thus, the Board was not persuaded that the applicant would be subjected to ill-treatment amounting to torture or persecution if he were refouled.  Relevant COI suggested that reasonable state protection was available and internal relocation was a viable option that would further negate the risk.  For the aforesaid reasons, the applicant’s case was rejected on all applicable grounds.

HCAL 378/2017

10.  On 10 July 2017, the applicant filed his Form 86 to apply for leave for judicial review against the Board’s decision and advanced the following grounds to support his challenge: 

(1)  The Adjudicator failed to carry out sufficient research and inquiry into the Country of origin information (“COI”) conditions of Bangladesh and his case was dismissed upon unfair procedure.

(2)  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.

(3)  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.

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

(5)  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.

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

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

(8)  Lack of legal assistance and representation.

11.  Deputy High Court Judge Woodcock (“DHCJ Woodcock”) heard the application on 27 October 2017 and by her decision of 9 February 2018, she decided to refuse leave to apply for judicial review after due consideration of the Director’s and the Board’s decisions.  The reasons were duly set out at [18] – [23] of the Decision:

“18. I have considered, with rigorous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

19. There are eight grounds in this affirmation and most contain no particulars.  Those include grounds 5, 6, 7 and 8.  As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  The applicant submitted in the hearing he did complain in the appeal that his duty lawyer did not represent him properly.  However, in the decision there is no record of any complaint made to the adjudicator concerning the performance of the lawyer assigned.  I have my doubts whether he did complain as he could give me no particulars.  Another example would be ground 6; it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation.  These grounds have no merits.

20. In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date COI material and research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  There are no particulars provided but in any event, the adjudicator did list what material he referred to in reaching his conclusion.  As for ground 4, despite a lack of particulars, the applicant made no police report and there was no evidence that the State failed to provide reasonable protection or that the State deliberately did nothing to assist the applicant.  These grounds are not reasonably arguable.

21. The applicant complains he was not given sufficient time to prepare for his hearing, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him.  I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

22. There is also a complaint that the Director did not screen or assess the BOR 2 risk claim before the adjudicator of the TCAB.  This submission makes no sense when the adjudicator had to decide whether or not to conduct a 2^nd oral hearing during the appeal process to specifically deal with the BOR 2 risk claim.  This can only mean it had been screened and rejected by the Director already and then subject to appeal.  In any event, the applicant agrees he had asked for and was granted more time by the Director to submit information to support a BOR 2 claim before it went to appeal.

23. I do not find any ground that shows 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.”

HCAL 272/2018

12.  The applicant did not appeal against DHCJ Woodcock’s decision in HCAL 378/2017.  On 21 February 2018, he filed another Form 86 to reapply for leave for judicial review under HCAL 272/2018.  In his supporting affirmation, he put forward the same grounds of review as advanced before DHCJ Woodcock under HCAL 378/2017.

13.  DHCJ Lam heard the case on 14 August 2018 and by his Decision of 25 June 2019, he decided to refuse leave for the applicant to apply for judicial review as DHCJ Woodcock had already considered the applicant’s case and reviewed the Board’s decision under rigorous examination and anxious scrutiny for which she found that the Adjudicator had achieved the high standard of fairness required of the applicant’s non - refoulement claim and that the applicant’s case was not reasonably arguable.  As the applicant failed to give any good reason to justify his repeated application, DHCJ Lam regarded it as an abuse of process and the application was therefore dismissed ([27] – [29] of the Decision).

14.  The 14-day period for the applicant to appeal the Decision of DHCJ Lam, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 9 July 2019.  On 5 September 2019, the applicant filed a summons to apply for leave to appeal the Decision out of time.   

15.  DHCJ Chan heard the application on 24 September 2019, and dismissed it on 4 November 2019.  The applicant had delayed for almost 2 months and it could not be regarded as insignificant.  The applicant explained that he did not receive the Decision in time as he was then in prison after being convicted for undertaking unauthorized employment, and was therefore not aware of the Decision until later when he was informed by the Immigration Department, by then, he was already out of time with his intended appeal.  The applicant did not adduce any documentary evidence in support of his claim.  DHCJ Chan found that even if his delay was excused, the more important consideration was that the applicant did not provide any grounds of appeal, or any particulars of any error in the Decision, or why it might be argued that the Decision was unfair or unreasonable.  In the absence of any error in the Decision being clearly and properly identified by the applicant, DHCJ Chan did not see any prospect of success in the intended appeal and thus dismissed the summons.

The renewed application

16.  On 6 November 2019, the applicant filed a summons seeking leave to appeal against the Leave Decision. Yet, in his supporting affirmation, he put forward 2 grounds against the Decision rather than the Leave Decision for his application:

(1)  DHCJ Lam was wrong in law in holding that there was no state acquiescence or involvement.

(2)  DHCJ Lam failed to provide detailed reason in support of his decision.

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 appeal, it is more appropriate to renew the application for extension of time before the Court of Appeal[7]. Accordingly, as the grounds of appeal were actually referring to the Decision, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal against the Decision made by DHCJ Lam 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.  In the present case, the applicant was late for almost two months and we agreed with DHCJ Chan that the applicant failed to provide any good reason for his delay.

22.  As the delay is inexcusable, the applicant has to show real prospect of success before extension would be granted, see Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

23.  The grounds of appeal were misconceived.  DHCJ Lam did not make any ruling on “state acquiescence or involvement” as the applicant’s case had been duly considered and ruled by DHCJ Woodcock.  The reason for dismissal of the applicant’s application was clearly explained by DHCJ Lam at [29] of the Decision:

“29. The Applicant had not given any good reason to justify his repeated application. He could not ask the court to consider his case again on grounds already submitted or which could have been raised in the 1^st Judicial Review. His case had already been duly considered by the Judge (DHCJ Woodcock) then. I should not reconsider it. The Applicant’s repeated application is obviously an abuse of process.”

24.  Further, the applicant’s case was dismissed by the Board on the issue of credibility and even if his case was accepted, he did not suffer any serious physical or mental harm in Bangladesh that attained a minimum level of severity nor would he face any future risk of serious harm that would qualify his claim under any of the applicable grounds.  The findings are well within the province of the Board and we see no basis of intervention in the absence of any valid public law grounds.

25.  To conclude, having considered the materials before us, we are of the view that none of complaints put forth by the applicant warrant this Court reversing the Decision of DHCJ Lam.

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 6 November 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.