RE AKTER

CAMP 234/2020

[2021] HKCA 1034

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 234 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1721 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 dated 18 June 2020 (“the Decision”), Deputy High Court Judge K.W. Lung (“DHCJ Lung”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 10 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 29 March 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant lodged a summons on 6 July 2020 seeking an extension of time to appeal against the Decision.  The application was heard before Deputy High Court Judge C P Pang (“DHCJ Pang”)  on 30 September 2020 and by his decision of 25 November 2020 (“the Leave Decision”), DHCJ Pang, having considered the length of delay, reason for the delay and underlying merits of his application, dismissed the applicant’s summons on the basis that it would not be in the interest of justice to grant an extension of time in this case.

3.  By a summons dated 8 December 2020, the applicant renewed his application before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 19 January 2021, the applicant lodged his written submissions on 3 February 2021. 

4.  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, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a Bangladeshi national. He came to Hong Kong on 18 November 2006 as a visitor and was allowed to stay until 2 December 2006.  He overstayed and was arrested by police on 27 January 2007. He was then referred to the Immigration Department for investigation and on 30 March 2007, he lodged a non-refoulement claim by way of written representation on the basis that if refouled, he would be harmed or even killed by people from some political parties, namely the Awami League, Bangladesh Nationalist Party, Jamat-e-Islam, Jatiyo Party, Jashod Party and Communist Party, collectively called (“the political parties”)  who had extorted money from him.  The factual background of this case was succinctly set out by the Judge at [6] of the Form CALL-1.[1]

6.  The applicant had previously made a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (now refer as to Part VIIC of the Immigration Ordinance, Cap. 115)  and his claim was rejected by the Director on 10 May 2013.  On 23 May 2013, he petitioned to the Board and on 8 July 2014, his petition was rejected.

7.  By the Notice of Decision dated 29 March 2017, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[2], the BOR 3 risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Board and an oral hearing was fixed for 30 May 2018.  By its decision dated 10 August 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons and analysis stated in [79] to [103] of its decision, the Board found that the applicant was not a credible witness and his evidence was inconsistent and implausible.  On the assessment of all available evidence, it was not accepted that he was the subject of extortion attempts and demands from members of various political parties in Bangladesh or that he had ever paid any extortion or that the police had refused to accept his complaints.  It was further concluded that the applicant did not come to Hong Kong for protection nor that if he were to return to Bangladesh, he would be subjected to the risk of harm as he claimed.  For the aforesaid reasons, his non-refoulement claim was dismissed on all applicable grounds.

The Judge’s decision

9.  On 23 August 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation, he said that he was unable to produce to the Board the documents that he had later obtained.  He attached (a)  “Shop Rent Agreement”; (b)  a translated police report saying he was demanded to pay extortion money and assaulted in Bangladesh and (c)  affidavit of Moriyam Akter, wife of the applicant in support of the applicant’s case.  Other than the attached documents, the applicant did not set out the grounds for his intended challenge against the Board’s decision.

10.  The application was heard on 22 January 2020 and by his decision of 18 June 2020, DHCJ Lung refused to grant leave to the applicant to apply for judicial review.  After summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [16] – [18] for his refusal to grant leave:

“16. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that 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 and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.

18.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

11.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 2 July 2020).   By the summons filed on 6 July 2020, he sought an extension of time to appeal against the Decision. 

12.  The summons was heard on 30 September 2020 and by the Leave Decision, DHCJ Pang refused to grant an extension of time for the applicant to appeal the Decision.   On the issue of delay, the applicant explained that he had to ask for help from a friend to understand the court order that caused the delay.  As the delay was not substantial, DHCJ Pang accepted his explanation and excused the delay. 

13.  On the issue of merit, the applicant failed to provide any grounds of appeal or provide any particulars pinpointing the errors in the Decision.  The applicant had attached a “Blood Test Report” dated 25 December 2003 in his supporting affirmation but he did not explain how the document was relevant or might assist his case.  Having considered all the material and evidence, DHCJ Pang found no merit in the underlying application and therefore refused the application for time extension, and dismissed the summons.

The renew application

14.  On 8 December 2020, the applicant filed a summons together with supporting affirmation to renew his application before this Court.  In his Summons and supporting affirmation, he said that he still has problem in his country and he would be in danger if refouled.  He complained that he had produced supporting documents including his hospital discharge certificates at the interview for his non-refoulement protection claims but they were disregarded.  He requested for “retest” of his case and to find a solution for his problem.

15.  In his written submissions, he attached a police report (with translation), a blood test report and 2-page Shop Rent Agreement (with translation)  and he further advanced the following grounds:

(1)  He cannot go back to his country as his enemies are powerful and he would face risk of harm.

(2)  His enemies vandalized his shop and tried to kill him and as a result, he was admitted to the hospital.  If he goes back, he would be killed this time.

(3)  He requested the court to find solutions to protect him from his enemies as he had been tortured by them.  His enemies are heartless people who only care about money but not human life.

Applicable Legal Principles

16.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless an extension of time to appeal is granted.  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.

17.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still 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. 

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: 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

19.  We agree with DHCJ Pang that the delay of 4 days is not substantial and we shall focus on the issue of merit in this case.

20.  In our judgment, the applicant’s intended appeal is devoid of merit and his grounds of appeal as set out in his summons, supporting affirmation and the written submissions are general and bare assertions without pinpointing any error of law or raising any discernible grounds for this Court to reverse the Decision. 

21.  Regarding his complaint that the supporting documents were disregarded at his “refoulement interview”, upon our careful review of the Board’s decision and the Leave Decision, we found it was not the case.  For the blood test report, we agree with DHCJ Pang that it had no relevancy to the applicant’s case.  For the police report and the Shop Rent Agreement, they were considered by the Board at [55] to [57] of its decision in which the Board rejected the production of the documents as they had not been served to the Director and also because the documents “had no apparent direct evidentiary value in terms of the Petitioner’s claim”.  Assessment of evidence and risk of harm are primarily within the province of the Board and this Court would not intervene unless there are valid public law grounds.

22.  We are satisfied that the Board had duly considered the applicant’s case and that there is no error of law or procedural unfairness or irregularities in its decisions. 

23.  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 8 December 2020 is dismissed accordingly.