RE ASHA DULLAH

CAMP161/2019

[2020] HKCA 1077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 161 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 471/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Barma JA (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 Josiah Lam given on 24 December 2018 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 26 February 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 3 February 2016 and 23 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 22 October 2011 illegally and was arrested by the police on 2 March 2014.  He lodged a non-refoulement claim on 8 March 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party and his concern that he will be arrested and tried for a murder he did not commit.  The details of the applicant’s claim have been summarised by the judge at [2] to [19] of the CALL-1 Form.

4.  By a Notice of Decision dated 3 February 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.  By a Notice of Further Decision dated 23 December 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 28 December 2017, the Board dismissed the appeal on 26 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [40] and [48] of the Board’s Decision, the Board did not accept the credibility of the applicant.  The Board was also satisfied at [81] that there is nothing to suggest that the applicant will not receive a fair trial.

The judge’s decision

8.  The applicant filed a Form 86 on 22 March 2018 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 Indonesia;

(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 22 March 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(1)  the hearing bundle for the hearing before the Board was provided at a late stage.  Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing.  He was confused as to what was happening and his credibility was wrongly questioned;

(2)  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

(3)  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 give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [43] to [59] of the CALL-1 Form:

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

44. 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.’

45. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director’s further decision dated 23 December 2016 was on BOR2 risk. The Applicant had made further submission to the Director. The Director considered all the facts. He need not hold further interview. The Director’s further decision should be read in conjunction with his earlier decision dated 3 February 2016, where there was a detailed analysis of the Applicant’s case.

46. The Applicant complained there were failures by the assigned duty lawyer at first instance. The Applicant failed to provide particulars in this regard.

47. The Applicant complained there was a lack of and/or insufficient legal representation. He said he was not represented when he prepared for appeal to the Board. That was not correct. The Applicant was represented by the Duty Lawyer Service (‘DLS’) up to the Board hearing. A duty lawyer, Mr Li, represented him on 28 December 2017 before the Adjudicator.

48. 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. After all, the Applicant had been represented by DLS during the whole screening process including the Board hearing. There were qualified interpreters to assist him. The Applicant had much exaggerated his language problem.

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

50. 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.

51. The Director stated in his letter dated 11 September 2018 that the appeal bundle was sent to DLS on 24 February 2017. That was many months prior to the Board hearing which took place on 28 December 2017. The bundle was served on the Applicant in good time.

52. The Applicant said he had difficulty to prepare for his appeal. However, he was still represented by DLS at that stage.

53. 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 certainly not confused.

54. The Applicant complained the Adjudicator had not considered the issues of state protection and state acquiescence. The Adjudicator did consider there was no state acquiescence in the Applicant’s complained situation. He also found that the Applicant would not be denied of justice if he stood trial in Bangladesh. The Adjudicator’s conclusions were not Wednesbury unreasonable.

55. The Applicant complained the Adjudicator failed to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights. The Applicant failed to prove there was such a need.

56. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.

57. There was also no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.

58. 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 of the case. 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. None of the Applicant’s complaints is substantiated.

Conclusion

59.  The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 18 April 2019, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ KW Lung on 14 June 2019.

12.  By a summons dated 12 July 2019, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that “My summons is refused.  I applied for judicial review when its decision come I did not get that letter, so I request for extension of time, my summons also refused to get better decision I want to go to higher court, as I am not satisfy this order”.

13.  In the affirmation dated 12 July 2019, he deposed that “As my summons is refused, but I want to get correct judgment about my claim, all my statements are true”

14.  In his skeleton submissions dated 1 August 2019, the applicant submitted that:

(1)  the Board and the Director have no knowledge about the situation in Bangladesh;

(2)  there was no language or legal assistance in the Board and in the judicial review leave application; and

(3)  the applicant only wants to stay in Hong Kong until the Awami League loses its power when it will become safe for him to return.

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 claimed that he did not receive the letter enclosing the CALL-1 Form without providing any explanation why that might be the case.  He also did not explain how he eventually came to know about the CALL-1 Form.  In the circumstances, we are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  Nonetheless, we will go on to consider the merits of the intended appeal.

17.  The notice of appeal and affirmation contain no viable grounds of appeal.

18.  The first ground of appeal set out in the written submission complains of errors on the part of the Director and the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

19.  The second ground complains of lack of legal representation.  However, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.

20.  The second ground also complains of the lack of language assistance.  We note, however, that the applicant was able to provide court documents in English and he identified the alleged errors committed by the judge, the Board and the Director and made submissions on those alleged errors in English.  It is clear that he has access to language assistance.  We are therefore not satisfied that the applicant suffered any real prejudice from the alleged lack of language assistance.  This ground is also without merit.

21.  The third ground does not identify any public law error and is not a valid ground for judicial review or a valid ground of appeal. 

22.  We therefore do not see any prospect of success in the intended appeal.  We will not grant an extension of time for a hopeless appeal.  The summons of 12 July 2019 is dismissed accordingly.

23.  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.