RE RAHMAN AZIZUL

CAMP 72 & 183/2019

[2020] HKCA 492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NOS 72 and 183 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 995 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 1 June 2018, the applicant filed a Form 86 to apply for leave to apply for judicial review against a decision of the Torture Claims Appeal Board (“the Board”) dated 23 May 2018 (“the Board’s Decision), dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 13 January 2017 (“the Director’s Decision”) rejecting his non-refoulement claim.

2.  The applicant’s leave application was listed to be heard on 28 November 2018 but he was absent from the hearing.  By way of a decision dated 28 November 2018, Deputy High Court Judge KW Lung (“the Deputy Judge”) dismissed the applicant’s application for want of prosecution without giving consideration to the merits ([2018] HKCFI 2634).  Subsequently on 19 December 2018, the applicant took out a summons for leave to appeal out of time against the Deputy Judge’s decision to dismiss for want of prosecution.

3.  On 24 January 2019, the Deputy Judge set aside his order for want of prosecution.  He later proceeded to consider the applicant’s leave application on merits and dismissed it on the basis that the applicant’s leave application had no reasonable prospect of success on 15 March 2019 [2019] HKCFI 621 (“the Deputy Judge’s Decision”).

4.  After more than one month, on 29 April 2019, by way of a summons, the applicant sought leave from Court of Appeal to appeal the Deputy Judge’s Decision out of time (“April 2019 CA Summons”).  This application was assigned with a case number CAMP 72/2019.

5.  On 30 April 2019, the applicant was directed that he should first obtain leave from the Court of First Instance and such application should be made on or before 14 May 2019, failing which the April 2019 CA Summons would be referred to Court of Appeal for dismissal without further notice. Meanwhile, the April 2019 CA Summons was stayed pending the decision from the Court of First Instance.

6.  Pursuant to the aforesaid directions, on 15 May 2019, the applicant filed a summons seeking leave from the Deputy Judge.  On 12 July 2019, the Deputy Judge refused to grant leave for extension of time [2019] HKCFI 1661 (“Deputy Judge’s Leave Decision”).  On 30 July 2019, Master Au-Yeung gave further directions to the applicant to proceed the April 2019 CA Summons.

7.  However, on 2 August 2019, the applicant took out another summons to seek leave to appeal the Deputy Judge’s Leave Decision out of time (“August 2019 CA Summons”)[1]. This application was assigned with a case number CAMP 183/2019.

8.  The April 2019 CA Summons and the August 2019 CA Summons will be referred to collectively as “the CA Summonses”.

9.  Since both CAMP 72/2019 and CAMP 183/2019 essentially concern the applicant’s leave to appeal the Deputy Judge’s Decision out of time, it is convenient to deal with these two applications together.  The applicant had not filed any written submissions in either proceedings as directed.

10.  Having considered the CA Summonses, we take the view that the applications can be disposed of on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court (Cap 4A).  We now hand down our judgment.

Background

11.  The applicant is a national of Bangladesh.  He came to Hong Kong illegally on 2 July 2014 and was arrested on the same date.  He lodged his non-refoulement claim on 5 July 2014.

12.  The details of the applicant’s claim and his personal background were set out in paragraphs 9 - 10 of the Director’s Decision, and paragraphs 3 - 8 of the Board’s Decision.

13.  Briefly stated, the applicant claimed that if he was to return to Bangladesh, he would be harmed or killed by members of the Awami League (“AL”).  The applicant claimed that he was a member of Bangladesh Nationalist Party (“BNP”) from 2004 and was involved in multiple fights with members of the opposition party AL.  In early 2014, he was told by his friend, Mezbaur Rahman Chontu that an AL member Shafi Kamal was killed and the applicant was accused to be one of the suspected killers.  Immediately, the applicant fled his home village and came to Hong Kong a few months after.  While he was in Hong Kong, he was informed that a fellow BNP member was arrested and then found dead in September 2015.

The Director’s Decision and The Board’s Decision

14.  By the Director’s Decision, after considering the BOR 3 risk[2], the persecution risk[3], the torture risk[4] and the BOR 2 risk[5], the Director decided against the applicant’s claim.

15.  The applicant appealed the Director’s Decision to the Board.  After hearing the applicant on 23 April 2018, the Board dismissed the appeal.  The Board found that the applicant was not a credible witness and his evidence before the Board was inconsistent with that before the Director.  His evidence before the Board was also inherently contradictory, such as the names of the victims and the dates when the events occurred.  Further, the basis of the applicant’s claim was at most disputes with individual or individuals of the opposition party with no state involvement.  The Board also agreed with the Director that internal relocation was available to the applicant (paragraphs 18 - 26 of the Board’s Decision).

The Deputy Judge’s Decision

16.  The grounds for review in the applicant’s Form 86 were summarized by the Deputy Judge at paragraph 19 of the Deputy Judge’s Decision:

“19. The applicant has set out his 22-page submissions in support of his application. I shall simply summarize his grounds in support of his application below:

(1) the Adjudicator fettered his discretion unlawfully;

(2) the Adjudicator acted in a procedurally unfair manner;

(3) the Adjudicator’s decisions are unreasonable and irrational in the public law sense;

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

(5) the Adjudicator had misapplied the law in relation to torture;

(6) the Adjudicator had not done sufficient research into the Country of Origin Information (‘COI’) or he had failed to applied appropriate weight to the COIs;

(7) his findings against the applicant by reference to the COIs are irrational;

(8) the applicant was not provided a lawyer for the appeal;

(9) the Adjudicator has failed his duty to obtain the requisite documents for fair adjudication of the appeal;

(10) the hearing bundle was given to the applicant a few days before the appeal and the contents are in English, which he had difficulty in understanding; but the applicant was not provided with translation or interpretation;

(11) the Board did not give him notice by phone of the Decision; and

(12) the Adjudicator had relied upon materials not officially recognized or it is simply hearsay.”

17.  After hearing the applicant and considering all the evidence, the Deputy Judge refused the applicant’s application.  He set out his reasons at paragraphs 20 - 28 of the Deputy Judge’s Decision:

“20.  The applicant appeared before me. He confirmed that he had had a fair hearing before the Board. He had no compliant [sic] against the Adjudicator. He did not complain he had any language problem or understanding of the Hearing Bundle.

21.  It is obvious that the Board rejected his claim because the applicant had failed to establish his case on the facts. The applicant therefore had no factual basis in support of his claim. Those grounds above are quite irrelevant to the reasons for the Board’s Decision.

22.  Grounds (1) to (7) are his opinion without any evidence in support of them. They are unsubstantiated. The burden is on the applicant to set out the grounds in support of his application, such grounds have to bear substance, not just ‘putting forward a bare and flimsy assertion’ Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29.

23.  The Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: ‘Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers.’

24.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 2018] HKCA 178, 26 March 2018, Lam VP [22] had said: ‘This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.’ Ground (8) fails.

25.  The applicant did not identify what documents he would like the Adjudicator to assist him to obtain. Ground (9) fails.

26.  In view of what the applicant had said to me in court, Ground (10) must fail.

27.  Ground (11) is a non-point. The Board has no special duty to call him by telephone. He had received the Board’s Decision in any event.

28.  Ground (12) cannot stand as the applicant is unable to identify what material he was referring to.”

Extension of time in the court below

18.  In the summons dated 15 May 2019 before the Deputy Judge, the applicant simply asked for the court to grant him the extension of time.  He failed to explain any reasons for delay.  The applicant was summoned to the court to explain.  Before the Deputy Judge, he said that he did not understand the Deputy Judge’s Decision.

19.  By way of the Deputy Judge’s Leave Decision, the Deputy Judge refused to grant extension of time to the applicant because neither the applicant explained the delay nor did he put forward any intended grounds of appeal.

Renewed application to this court

20.  In the CA Summonses, the applicant advanced the same grounds in his supporting affirmations dated 29 April 2019 and 2 August 2019 respectively.  He argued that the Deputy Judge (a) erred in law in holding that there was no state involvement and (b) failed to provide sufficient reasons in support of his decisions.

Discussion

21.  This court has a discretion to extend time to appeal out of time.  The court however will only consider whether to do so after taking into matters such as (a) the length of delay, (b) the explanation of the delay, (c) the merits of the intended appeal, and (d) the prejudice to the respondent is time to appeal is extended.  See: Re MA [2019] HKCA 1020 at [14] - [15].

22.  In our view, this application is without merits.

23.  First, a delay of more than one month is significant in the context of an only 14-day statutory appeal period as provided by the rules.

24.  Second, the applicant did not provide any explanations for his delay.

25.  Third, there are plainly no merits in the intended appeal.

26.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The followings are pertinent in considering the present appeal:

(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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, 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 an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court.

27.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularities the errors said to have been committed by the Deputy Judge.

28.  Plainly, the two grounds advanced by the applicant have no merits.

29.  The applicant’s complaint in relation to the Deputy Judge’s finding on state involvement is misplaced.  The applicant did not raise any specific grounds of review in his intended judicial review before the Deputy Judge concerning the Board’s finding of no state involvement.  Hence, the Deputy Judge himself had not made any decision relating to state involvement. There is simply no question of the Deputy Judge erring in law in this respect. This is not a viable ground of appeal.

30.  In any event, the finding of state acquiescence or involvement is within the primary province of the Board (and the Director). The Board made a thorough analysis at paragraphs 20 - 26 of the Board’s Decision that the applicant’s claim rested on the fear of an individual or individuals of AL and that he was able to receive sufficient protection if refouled.  After considering the applicant’s submissions and hearing his evidence at court, the Deputy Judge did not find any public law fault in the Board’s Decision in relation to the fact findings.

31.  For the other grounds of appeal, the Deputy Judge had at paragraphs 20 - 28 of the Deputy Judge’s Decision explained his reasons in detail for rejecting the applicant’s grounds of review against the Board’s Decision. There is simply no basis to say that the Deputy Judge did not provide sufficient reasons.

32.  The intended appeal therefore had no prospect of success.  It is thus futile for us to grant extension of time to the applicant.  The CA Summonses are therefore dismissed.