RE BEPARI HIRU

CAMP 149/2019

[2020] HKCA 228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 149 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 681/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is in effect an application for leave to appeal against the decision of Deputy High Court Judge Josiah Lam given on 30 January 2019 refusing to grant extension of time for his application for leave for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 25 January 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally and was arrested by the police on 19 July 2014.  He lodged a non-refoulement claim on 21 July 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [15] of the CALL-1 form.

4.  By a Notice of Decision dated 16 August 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  The applicant appealed to the Board.  As the applicant was late in filing the Notice of Appeal/Petition, the Board had to decide under section 37ZT(2) of the Immigration Ordinance, Cap 115 whether to allow the late filing of the notice.

6.  In its decision dated 25 January 2017 (“the Board’s Decision”), the Board considered that the applicant has failed to provide any explanation for the delay and refused to allow the late filing of the notice. 

7.  By a Further Decision dated 10 April 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.  The applicant did not appeal against this decision.

The judge’s decision

8.  The applicant filed a Form 86 on 19 April 2018 against the Board’s Decision which contained the following grounds for judicial review, summarised below:

(1)  the Board unlawfully fettered his discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness;

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  the Board misdirected itself on the law by considering that the applicant has to experience torture in the past in order to establish substantial grounds for believing that a risk of torture exists;

(6)  procedural impropriety/unfairness in the Board’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;

(7)  irrationality in the Board’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

(8)  irrationality in the Board’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(9)  irrationality in the Board’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(10)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(11)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicants;

(12)  procedural impropriety/unfairness by the Board in applying the incorrect standard of proof in his decision; and

(13)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicants resulting in unfair procedure.

9.  In his affirmation in support of the leave application dated 19 April 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(1)  the applicant was late in filing the Notice of Appeal before the Board because he was in jail.  It was clear that he sent the Notice of Appeal from inside the prison;

(2)  the Board failed to consider that the applicant was not legally represented and did not understand English;

(3)  the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for him to return to Bangladesh; and

(4)  the Board gave its decision on BOR 2 risk before this claim was screened by the Director.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review. The judge gave the following reasons at [35] to [47] of the CALL-1 form:

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

36. 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.’

37. The Applicant not only filed his appeal late to the Board. He also filed the current application for leave for judicial review late. The Board’s decision dated 25 January 2017 was sent to the Applicant in prison then. [The Applicant was arrested by the police for unlawful employment in late October 2015. He was convicted on 11 January 2016 and sentenced to 15 months’ imprisonment.] The Applicant, however, only filed his application for leave for judicial review almost 15 months later on 19 April 2018.

Late application for leave for judicial review

38. Order 53 Rule 3(1) of the Rules of the High Court states: –

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

39. Order 53 Rules 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. (L.N. 356 of 1988)

(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.

40. It is clear from these provisions that no application can be made after the three-month period unless the Court considers there is a good reason for extending time. The Applicant must provide good reasons for the Court to approve 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 a 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.

41. In the present case, the Board’s decision was issued on 25 January 2017. The Applicant only applied for leave for judicial review almost 15 months later on 19 April 2018. Excluding the 3-month grace period for filing, he was almost late by 12 months.

42. The Applicant said he received the Board’s decision (dated 25 January 2017) only on 17 April 2017. The Board's decision was sent to Pik Uk Prison on 25 January 2017. The Applicant's name was clearly stated on the covering letter of even date together with his prisoner number (P 392562). It was implausible that the Applicant did not get the Board's decision in January 2017 but only in April 2017.

43. The Applicant mentioned he had made application to LAD (Legal Aid Department). Time was required and that caused delay. In the court file, there was only a record of the Applicant's applying for legal aid on 21 May 2018. The Director of Legal Aid refused his application on 11 June 2018. I cannot see how legal aid matters had contributed to the Applicant's late application for leave for judicial review.

44. The Applicant also attributed his delay to having to obtain all relevant documents from DLS and the Security Bureau. There was simply no evidence to support his vague assertion.

45. The Applicant failed to show any good reason for the almost 12-month delay in his application for leave for judicial review. The delay was undue and substantial. The prejudice that would be caused to the putative respondent was not insignificant. Discipline should be maintained in the area of public law. The current application involved no issue of general importance. It also had no merits.

46. The Adjudicator dismissed the Applicant's appeal because it was late. He was of the view that the delay though short by itself was still a serious and significant failure to comply with the strict rules in s. 37ZS and s. 37ZT of the Immigration Ordinance. The Applicant failed to give any reason for the delay. The Adjudicator found there were no special circumstances that would make it unjust to reject the Applicant’s late filing of appeal.

Conclusion

47.  The current application for leave for judicial review is unreasonably late. There are no justified circumstances that oblige the court to consider such late application. I refuse to grant the Applicant extension of time. His late application for leave for judicial review is therefore dismissed.”

Application for leave to appeal and grounds for appeal

11.  By a summons dated 11 February 2019, the applicant sought leave to appeal.  His application was dismissed by DHCJ K.W. Lung on 21 June 2019.

12.  By a summons dated 2 July 2019, the applicant renewed his application for leave to appeal before this court.  He did not give any ground of appeal in the summons.

13.  In the affirmation dated 2 July 2019, the applicant deposed that:

“The grounds of my application are as follows:

a)  [DHCJ K.W. Lung] was wrong in law in holding that there was no state acquiescence or involvement.

b)  [DHCJ K.W. Lung] failed to provide detailed reason in support of his decision” 

14.  In his skeleton submissions dated 8 August 2019, the applicant set out a number of general legal propositions submitted that:

(1)  the Board failed to meet the high standard of fairness; and

(2)  the decision-maker failed to meet the minimum standards of procedural fairness.

However, he did not explain how these complaints related to this case.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

16.  The applicant sought leave to appeal out of time against the order of DHCJ KW Lung.  This was incorrect, as his application should have been a renewed application to this court to seek leave to appeal against the decision of DHCJ Josiah Lam.  We shall treat it as such an application.

17.  As is apparent from the CALL-1 form, the judge considered that the delay was substantial and did not appear to him to be excusable and refused to grant an extension of time.  As the judge’s refusal of an extension of time to bring judicial review proceedings is an interlocutory judgment, leave to appeal is required.

18.  Although the grounds of appeal in the affirmation dated 2 July 2019 are said to be directed towards the decision by DHCJ KW Lung, we will treat them as directed against the CALL-1 form.

19.  Both the grounds in the affirmation lack particulars.  Further and in any event, DHCJ Josiah Lam has refused to grant an extension of time was because the applicant has failed to provide any valid explanation for the delay in seeking leave for judicial review.  We consider that the judge has given adequate reasons for his decision.

20.  As for the grounds raised in the written submission, the applicant only referred to a number of decisions and general principles without explaining how they are relevant to the present application.  These grounds are without merit.

21.  We therefore do not see any prospect of success in the intended appeal.  We will not grant leave for a hopeless appeal.  The summons of 2 July 2019 is dismissed accordingly.

22.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.