RE DAS RATAN alias SWAPAN BANIK

CAMP 262/2019

[2020] HKCA 592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 262 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 568 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 14 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 February 2018.  In the Board’s decision, it upheld the decision of the Director of Immigration (“the Director”) dated 27 April 2017 rejecting the applicant’s non-refoulement claim.

2.  On 9 August 2019, the applicant took out a summons for an extension of time to appeal against the Decision.  On 14 October 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 18 October 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 22 October and 8 November 2019, the applicant was directed to lodge his written submissions in support of his summons on or before 26 November 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 previously came to Hong Kong on 6 May 2002 under the identity of Swapan Banik. He overstayed after the expiry of his permission to stay and was convicted of breach of condition of stay.  He was repatriated to Bangladesh on 3 August 2002.  On 18 August 2006, he came to Hong Kong again under the current identity and was permitted to stay until 1 September 2006.  He did not depart and overstayed.  He was arrested by the police on 14 May 2007 and was transferred to the Immigration Department for investigation.  He was convicted of the offences of making false representation to an immigration assistant and using a false travel document.  As a result, he was sentenced to a total of 12 months’ imprisonment.  On 6 December 2007, he made a claim for BOR 3 risk[3] by way of written representation.  On 5 January 2010, he withdrew his torture claim and was deported to Bangladesh on 22 February 2010.   

8.  On 4 February 2016, he entered into Hong Kong again illegally and surrendered to the Immigration Department on 23 March 2016.  On 14 November 2016, he lodged his non-refoulement claim by way of written representation on the basis that if he were to return to Bangladesh, he would be harmed or killed by (i) his creditors Mostofa and Akash for his failure to repay the debt; (ii) supporters of the Awami League (“AL”) as he had declined to support the AL and (iii) the Muslim in his community which despised and discriminated Hindu like him.  The factual background was succinctly summarized by DHCJ Lam at the Decision at [1] to [20].

9.  By Notice of Decision of 27 April 2017 (“the Director’s Decision”), 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[4], the BOR 3 risk, the torture risk[5] and the persecution risk[6].

10.  The applicant lodged an appeal/petition to the Board against the Director’s Decision.  After the hearing on 9 October 2017, the Board dismissed the appeal on 7 February 2018.  For the reasons and analysis stated in [39] to [47] of the Board’s decision, the Board found that the applicant had not suffered any more serious than verbal pressure from his creditors and after all, he admitted that he could pay off the outstanding loan by selling his property.  As such, the Board concluded that the risk of harm was negligible.  By accepting the applicant’s account of event of the threats from the AL people, the Board found that he was pressurized but was not harmed physically.  Further, the Board was not satisfied that he had a profile as a supporter of the Bangledash National Party (BNP) which would bring him to the adverse attention of opponents such as the AL.  As for his religious problem, the Board did not find any anti-Hindu violence in his home area.  The applicant’s claim that the Muslim community had demanded extortion money from his Hindu community would not amount to persecution and clearly was not qualified for torture, BOR 2 or BOR 3 risks.  For the aforesaid reasons, his case was rejected on all applicable grounds.

11.  On 6 April 2018, the applicant filed Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decision and he advanced the following grounds for his intended challenge:

(1)  the Adjudicator had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

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

(3)  the Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness;

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

(5)  the hearing bundle for the appeal was only available 7 days before the appeal hearing;

(6)  the majority of the documents in the hearing bundle were in English that he could not understand and he did not have financial means to find an interpreter;

(7)  he did not understand what happened at the Board’s hearing as the bundle was not provided earlier and with interpretation;

(8)  The Board failed to make appropriate arrangement in relation to the hearing bundle and it was unfair to him; and

(9)  the Board had significantly relied on the source of news which were not officially recognized or was simply hearsay.   The Board also relied on cases that were outdated and the lack of credible source of information.  It resulted in groundless speculations that it was safe for him to return back to his country of origin.

The decisions below

12.  DHCJ Lam heard the case on 5 September 2018 and by his Decision, he decided to refuse leave for the applicant to apply for judicial review after his due consideration of the Director’s and Board’s decisions.  The reasons were duly set out at [42] to [52] of the Decision:

“42. The Applicant complained there was a lack of legal representation after the Director's decision. He had been represented by the Duty Lawyer Service up to the Director's decision dated 27 April 2017.

43. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

44. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

45. The Applicant complained he received the appeal bundle only a few days before the Board hearing.

46. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

47. The Applicant said he received the appeal bundle on 2 October 2017. That was 7 calendar days prior to the Board hearing scheduled for 9 October 2017. There were two public holidays and one Sunday in that 7-day period, so there were only 4 working days in between.

48. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

49. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

50. The Applicant said he answered all the questions honestly in the Board hearing. That would mean he knew well what was asked and how to answer. He was not confused.

51. There was no evidence the Adjudicator relied on outdated cases, information not officially recognized or simply hearsay.

52.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

13.  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 28 June 2019.  On 9 August 2019, the applicant filed a summons to apply for leave to appeal out of time.  In the applicant’s supporting affirmation, he admitted that he had received the Decision on time but he did not understand the court order and the Decision as he did not understand English nor the law on judicial review.  He sought assistance from his friend but his friend gave him wrong information that he had 3 months’ time to appeal and it had not been expired. 

14.  DHCJ Chan heard the application on 3 September 2019, and dismissed it at the conclusion of the hearing.  He considered that the delay of more than one month was not insignificant.  The applicant explained at the hearing that he did not receive the Decision and he only found out the Decision when he reported to the Immigration Department in late July 2019 when he was informed accordingly.  He was by then already out of time with his intended appeal.  As what he said at the hearing was different from the version in his supporting affirmation, the court pointed it out to him for an explanation.  He claimed that he was not aware of what his friend had put down for him in his supporting affirmation and he denied that was what he had told his friend, and insisted that he had never received the Decision by mail from the court.

15.  DHCJ Chan took the view that regardless of which version of the applicant’s explanation for the delay was true, in the absence of independent evidence that his friend would indeed put in the affirmation something not said or meant by the applicant, ignorance of the rules of procedure would not be accepted as a valid reason for his delay.  Since there was no evidence other than the applicant’s mere assertion when the court record showed that the Decision was sent to his last reported address on the same day as the Decision and it was not returned undelivered, DHCJ Chan was not satisfied that the applicant had provided any good reason for his delay.

16.  More importantly, the applicant did not provide any draft or proposed grounds of appeal, or point to any particulars of any error in the decision, or why it might be argued that the Decision was unfair or unreasonable.  When he was invited to do so at the hearing, he conceded that DHCJ Lam had not committed any error or mistake in the Decision and that he just wanted to stay in Hong Kong.  In the circumstances, DHCJ Chan found it futile to extend time for what appeared to be a hopeless appeal and dismissed his summons accordingly.

The renewed application

17.  On 18 October 2019, the applicant filed a summons seeking leave to appeal against the Leave Decision of DHCJ Chan.

18.  In his supporting affirmation, he mainly repeated his oral submission on the issue of delay as put before DHCJ Chan as mentioned in [14] of this judgment.  He further complained that there was a lack of legal assistance and he did not have money to engage his own lawyer.  His legal aid application had been refused. 

Legal principles

19.  As rightly out pointed in 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 appealing, it is more appropriate to renew the application for extension of time before the Court of Appeal[7].   Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal against the substantive decision of out of time.

20.  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.

21.  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. 

22.  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

23.  In the present case, the applicant was late by more than 1 month.  As noted by DHCJ Chan, this is not an insignificant delay.

24.  We agree with DHCJ Chan that the applicant had not provided a satisfactory explanation for the delay.  As the delay is inexcusable, the applicant has to show a 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.

25.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection because it considered that: (i) the applicant only faced verbal pressure from his creditors and the risk was negligible; (ii) he only claimed the local Muslims demanded payment from the Hindu community and it was not a risk that warranted non-refoulement protection; (iii) the Board did not find him a target of AL or Bangladesh state and he had not been inflicted with ill-treatment to the minimum level of severity; and (iv) the Board concluded that there was no real persecution risk, torture risk, BOR 3 risk or BOR 2 risk.  As explained, such a finding is within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

26.  In his documents, the applicant failed to provide the Court with any specific details that could provide public law ground to vitiate the findings of the Board in these regards.  His complaints as set out in his supporting affirmation was a mere regurgitation of arguments that was canvassed and rejected by the Judges below.

27.  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.

28.  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 18 October 2019 is dismissed accordingly.

29.  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.

[1]  [2019] HKCFI 1403

[2]  [2019] HKCFI 2470

[3]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4]  This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[5]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[6]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7]  See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8].