RE BHUIYAN MOHAMMAD MOMINUL HOQUE

CAMP 292/2019

[2020] HKCA 744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 292 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 77 & 919 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 19 July 2019 (“the Decision”)[1], Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant an extension of time for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 11 January 2018.  In its decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 23 August 2016 and 18 September 2017 rejecting the applicant’s non-refoulement claim.

2.  On 4 November 2019, the Judge refused to grant leave for the applicant to appeal against the Decision.  By a summons dated 18 November 2019, 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 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.  As such, leave under section 14AA of the High Court Ordinance (Cap.4) (“HCO”) does not apply.  Since delay is inevitable due to the clarification of the applicable law and procedures by the said Court of Final Appeal judgment, this Court has processed the present application as an application for extension of time to appeal against the Decision.

4.  Having considered the summons, the supporting affirmation and the written submissions lodged by the applicant on 4 December 2019, pursuant to the directions made by the Registrar of Civil Appeals on 20 November 2019, we are of the view that it is appropriate to determine the present application on paper.

Background

5.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 7 March 2013 and was arrested by the police on the same day.  He was then transferred to the Immigration Department for investigation. On 11 July 2014, he lodged his non-refoulement claim by way of written representation on the basis that if he were to return to his country, he would be harmed or even killed by Biplob and his people, who are supporters of the student wing of a rival political party Awami League when the applicant was a supporter of Bangladesh Nationalist Party and joined its student wing Chatra Dal. The factual background was succinctly summarized by the Judge at [1] – [4] of the Decision.

6.  By a Notice of Decision dated 23 August 2016 and a Notice of Further Decision dated 18 September 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The Director’s decisions covered the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4] and the persecution risk[5].

7.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  After the hearing on 3 November 2017, the Board dismissed the appeal on 11 January 2018.  For the reasons and analysis stated in [16] – [20] of the Board’s decision, the Board found the applicant’s account of events in Bangladesh, in particular his additional assertion of false charges being made against him for the death of three Chatra League members and for which he was subsequently convicted, was only based on hearsay from his family.  The Board found the evidence conflicting and incredible and without a shred of documentary evidence in support and thus, no weight was given to it.  The Board further found that reasonable state protection would be available and internal relocation was a viable option.  For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds. 

8.  On 16 January 2018 the applicant filed his Form 86 under HCAL 77/2018 for leave to apply for judicial review of the Director’s decision.  In his supporting affirmation, he merely stated that the Director’s decision was unreasonable and the Director failed to consider all the matters raised in his claim and/or failed to give adequate reasons for his decision.

9.  However, before his application was dealt with by the Court, on 24 May 2018, about 4.5 months after the date of the Board’s decision, the applicant filed another Form 86 under HCAL 919/2018 to apply for leave to apply for judicial review of the Board’s decision, and in it he advanced the following grounds for his intended challenge:

(1)  the Board had unlawfully fettered its discretion by refusing his appeal on all the applicable grounds that they did not satisfy the relevant requirements;

(2)  procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)  procedural unfairness in that the Board’s decision to refuse his appeal were unreasonable, unfair, procedurally erroneous or irrational in the public law sense;

(4)  procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented litigant;

(5)  procedural unfairness in failing to provide the hearing bundle for his appeal at an earlier time and without proper translation when the majority of documents were in English; and

(6)  the Board had significantly relied on source of news that were not officially recognized or simply hearsay or outdated and thereby causing the Board to make groundless speculations that the applicant would be safe to return to his home country.

The Judge’s decisions

10.  The Judge heard the case on 11 April 2019. As the applicant commenced two applications for leave to apply for judicial review of the Director’s decisions and the Board’s decision respectively, the Judge consolidated the two applications for the Court’s disposal.  

11.  Regarding the issue of delay, the applicant explained at the hearing that he was sick at that time and was resting at home but he did not give any further particulars or documentary evidence, see [15] of the Decision.

12.  Further, the Judge had rightly applied the principle laid down by this Court in Re Moshsin Ali [2018] HKCA 549 in which it was held that the decisions of the Director were not amenable to judicial review once a non-refoulement claimant had pursued an appeal to the Board.  As the applicant had already appealed to the Board against the Director’s decision, the Judge only focused on the Board’s decision in the leave application.

13.  Having considered the relevant case law and procedural rules, as well as the applicant’s explanation for the delay, the Judge refused to grant an extension of time on 19 July 2019.  The Judge held that there was no good reason for the delay, which was undue and could not be regarded as insignificant.  For the reasons set out at [16] to [21] of the Decision, the Judge further concluded that there was no merit in the intended judicial review:

“16. As for the merits of his intended application, the applicant’s proposed grounds to challenge the Board’s decision are however mostly just broad and vague assertions containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or how was its decision unreasonable or irrational in the public law sense, or which source of news or COI was not officially recognized or was hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

17. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

18. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had all earlier being made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

19. Furthermore, the Board rejected his claim of the false charges being laid against him for the death of three Chatra League members and his subsequent conviction on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 16 to 18 of its decision and with the benefit of having heard him in evidence and in his answers to questions raised of that claim during his oral hearing, that in the absence of any legal error or procedural unfairness being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

20. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21. In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the applicant’s claim.”

The present application

14.  On 18 November 2019, the applicant filed a summons together with supporting affirmation seeking leave to appeal against the Leave Decision.  As explained earlier, by following H v Director of Immigration (supra), leave under section 14AA of HCO is not necessary and we have processed the present application as an extension of time to appeal against the Decision.

15.  In his written submissions, the applicant quoted passages from ST v Director of Immigration[6][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and alleged that the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submissions further referred to section 37ZT of the Immigration Ordinance (Cap. 115) and contended that in dealing with late filing of notice of appeal, the Board may only take account the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge. However, he did not explain or elaborate how the legal authorities and provisions would apply and assist his case.

Legal principles

16.  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.

17.  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.

18.  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 discussed in Nupur Mst v Director of Immigration [2018] HKCA 524 [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).

19.  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.

20.  We now turn to review the Decision.

21.  The applicant had delayed for almost 1.5 months in applying for leave for judicial review against the Board’s decision.  We agreed with the Judge that the delay was not insignificant and the applicant’s explanation that he was sick at that time and was resting at home without any support of documentary evidence was not a good reason for his delay.  Thus, a higher threshold on the merit is called for.

22.  In this application, the applicant has not set out any ground of appeal in his summons or supporting affirmation.  Nothing set out in his written submissions can be constituted as valid ground of his appeal. 

23.  We have carefully reviewed the Board’s decision in which the applicant’s appeal/petition was dismissed on the ground that the applicant’s evidence was incredible and unreliable. Such a decision is within the province of the Board and the court will not interfere with the decision in the absence of any public law grounds.  We are satisfied that that Judge had considered the Board’s decision with rigorous examination and anxious scrutiny and he did not find any error of law or procedural unfairness or irregularities in it.  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 18 November 2019 is dismissed accordingly.