RE MOHAMMAD BABUL AND OTHERS

CAMP 51/2017
[2018] HKCA 38

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 51OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 315 of 2017)

___________________

___________________

___________________

JUDGMENT

___________________

Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock on 6 November 2017 refusing leave to the 1^st applicant to apply for judicial review. The 1^st applicant came from Bangladesh to Hong Kong on 20 January 2004 as a visitor and overstayed since 24 January 2004. He was arrested by the police on 12 December 2007. On 20 November 2009 he lodged a non-refoulement claim.

2.  The 2^nd applicant came from Indonesia to Hong Kong on 20 June 2003 to work as a foreign domestic helper.  Her employment was terminated on 1 February 2006.  She did not leave Hong Kong and overstayed since 16 February 2006.  She surrendered herself to the Immigration Department on 30 March 2009.  On 15 April 2009 she lodged a non-refoulement claim.

3.  On 31 May 2009, the 2^nd applicant gave birth to the 1^st applicant’s daughter, the 3^rd applicant.

4.  The 1^st and 2^nd applicants got married on 12 October 2009.

5.  They gave birth to another child, a son, the 4^th applicant on 13 May 2011.

6.  The 2^nd applicant requested to have the 3^rd and 4^th applicants included in her non-refoulemen claim.  

7.  The Director considered all the claims together and decided against the claims on 26 January 2015, supplemented by a further decision of 16 February 2017 regarding BOR 2 risk.  The applicants appealed to the Torture Claims Appeal Board and after four hearings on 20 April, 14 June, 25 July and 14 October 2016 at which the 2^nd applicant acted in person whilst the 1^st, 3^rd and 4^th applicants were represented by counsel, the Board dismissed the appeal on 9 June 2017.  The intended judicial review was in respect of the decision of the Board.  The Board rejected the non-refoulement claims of the applicants in respect of torture risk, BOR 3 risk, persecution risk and BOR 2 risk. 

8.  The judge refused leave on 6 November 2017 after hearing the applicants on 16 August 2017.  She gave the following reasons in refusing leave at [26] to [36] of the Form CALL-1:

“ 26. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully. The applicants’ complaints against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

27. I found no substance in the grounds of this application. In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.

28. It is submitted the adjudicator failed to consider relevant and up-to-date COI information, cherry picked information or failed to properly enquire at all. He is accused of putting weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact. These accusations are not backed with particulars or examples; they are bare assertions. However, in his decision the adjudicator made proper reference to material he relied on and referred to in the hearing bundle. He stated the source and its relevance. I find it more than sufficient; these grounds are not arguable.

29. The adjudicator is accused of irrationality, failing to consider State or extended State acquiescence in the context of State protection. He clearly considered this between paragraphs 41 and 48 of his decision. He is accused of failing to evaluate to make a finding of fact as to whether there exist in Bangladesh consistent pattern of gross, flagrant or mass violations of human rights. He clearly considered this, see paragraph 55 of his decision.

30. The applicants rely on a procedural impropriety/unfairness ground in that their assigned duty lawyer failed them in the hearing, at first instance before the Director. In essence, it is said they were not represented properly and not afforded a fair procedure. However, there are no particulars as to how the assigned duty lawyer failed the applicants; it is a bare assertion. The applicants were privately represented during the appeal process and there is no indication of a complaint of previous poor representation to the adjudicator during the appeal. This ground has no merit.

31. It is submitted there was procedural unfairness/impropriety in that the appeal bundle was in English and given to the applicants just prior to the hearing meaning they had insufficient time to prepare without a translation. They did not understand what would happen in the hearing and were confused. This ground is not arguable because the applicants were represented during the hearing before the TCAB and their interests were protected. The affirmation wrongly states the 2^nd applicant answered all questions honestly when she elected to remain silent.

32. There is an allegation of impropriety in that the adjudicator dealt with the BOR 2 risk without it being assessed by the Director first. This is misleading and incorrect. The adjudicator makes clear at paragraph 101 of his decision that he receives the decision of the Director to dismiss the BOR 2 risk claim during the time he is considering the appeal. He explains why he found it unnecessary to hold a further hearing and his explanation is reasonable. The applicants are not prejudiced by that decision. There is no merit in this ground.

33. There is an attempt in the affirmation to introduce new evidence to suggest the 2^nd applicant could not relocate internally in Indonesia because she had learnt from friends there that the moneylender was connected to a large group of gangsters who would murder or kidnap those who failed to repay their debts. This ground raises matters which are fact sensitive and not to be entertained in a review application of this nature.

34. It is submitted the 3^rd and 4^th applicants are Stateless children and it would be cruel and inhuman to deport them to a country where they have no nationality, subjecting them to discrimination and cruel treatment. It is submitted as they have birth certificates from Hong Kong, why should they be removed from Hong Kong. No evidence was produced to prove they were stateless children. This was not raised before either the Director or the adjudicator so therefore inappropriate to raise here as a ground for judicial review. In any event, having read the recent decision of PVQ and others v Permanent Secretary for Justice HCAL 21/2017 this submission would not succeed.

35. After careful consideration, 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 decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable

36. In my judgement, the applicants’ claims were not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

9.  According to court record, the CALL-1 form and the sealed order of the judge were sent by post to the applicants on 6 November 2017.

10.  Pursuant to Order 53 Rule 3(4), the applicants had 14 days to lodge an appeal.  They failed to do so.  On 22 November 2017, the 1^st applicant applied by summons for extension of time to appeal.  His application was supported by an affirmation.  In the affirmation, nothing substantial was said other than that he applied for extension of time to appeal. 

11.  On 8 December 2017, he lodged a set of submissions.  In those submissions, he advanced three grounds:

(a) High standards of fairness are applicable to the processing of his claim;

(b) The Board erred in approaching the matter by simply trying to see whether he could find fault with the decision of the Immigration Officer instead of conducting a rehearing with consideration of the Country of Origin information [“COI”];

(c) Minimum standard of procedural fairness is required. 

12.  These grounds related to the proceedings before the Board.  We can readily accept propositions (a) and (c) above.  However, the important question is whether the Board had satisfied the high standards of fairness in the present case.  The 1^st applicant did not give any particulars of breach of such standards in the documents lodged for the purpose of the appeal.  Such particulars have to be found at pages 25-29 in a document attached to his affirmation of 21 June 2017 filed in HCAL 315 of 2017 in support of his application before the judge below.

13.  In our judgment, the judge had duly addressed those complaints at [30] to [32] of the CALL-1 Form. 

14.  Proposition (b) has no merit.  We have read the written decision of the Board.  We can find no basis to suggest that the Board adopted the wrong approach as suggested by the 1^st Applicant.  It was also plain from the written decision that the Board had examined the relevant COIs.  

15.  Though the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the primary decision maker is still the Board, the court should not usurp the role of the Board.  Having read the full decision of the Board, we are of the view that it was perfectly open to the Board to come to its conclusion that there is no substantial ground for believing that the applicants would face a real risk of being subject to ill-treatments which meet the high threshold as required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174]. 

16.  When one reads the judge’s observations in the CALL-1 Form together with the detailed Reasons given by the Board in its Decision of 9 June 2017, the intended grounds of appeal are not reasonably arguable.  We do not see any errors of law or procedures in the proceedings before the Board.  We agree with the judge that leave to apply for judicial review should not be granted.

17.  For these reasons we do not see any prospect of success in the intended appeal.  Though the delay was short, we would not grant extension of time for a hopeless appeal to be lodged.  The summons of 22 November 2017 is dismissed accordingly.