AMIN MD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 59 /2019

[2019] HKCA 775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 59 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 68 OF 2018)

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J U D G M E N T

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

Background

1.  On 7 December 2018, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.  On 26 March 2019, the judge refused to grant leave to the applicant to appeal against his said decision out of time as there is no prospect of success in the intended appeal^[2].

3.  The applicant filed a renewed application with the Court of Appeal for leave to appeal against the judge’s decision out of time on 4 April 2019.

4.  On 8 April 2019, the Registrar of Civil Appeals gave directions for the applicant to lodge written submission in support of his renewed application on or before 17 April 2019.  He has complied with the direction.

5.  We think it appropriate to exercise our power under Order 59 rule 2A(5) of the Rules of the High Court to determine this application on paper without an oral hearing.

6.  The applicant is a national of Bangladesh who entered Hong Kong as a visitor on 17 September 2004.  He overstayed and was later arrested by the police on 8 January 2007.  After he was referred to the Immigration Department, he lodged a torture claim which was received by the Immigration Department on 30 October 2009.  His torture claim has been taken to be a non-refoulement claim under the Unified Screening Mechanism.  His claim was made on the basis that if he were to return to Bangladesh, he would be harmed or killed by certain members of a rival political party Awami League (“AL”) and by his uncles over certain land dispute in the family. 

The Director’s decisions

7.  By a Notice of Decision dated 28 August 2015, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim. The decision covered torture risk^[3], BOR 3 risk^[4] and persecution risk^[5].

8.  By a notice of further decision dated 16 March 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk^[6].

The Board’s decision

9.  The applicant attended the hearing of the appeal against the Director’s decisions before the Board on 21 April 2017.  The Board found, inter alia, that the applicant’s evidence was neither truthful nor reliable.  The Board was not persuaded that the applicant experienced threats from the AL or from his uncles and cousins as he claimed or at all.  The Board decided that the applicant failed to establish his claim and dismissed the appeal on 10 January 2018.

The intended judicial review

10.  The applicant filed a Form 86 and an affirmation on 15 January 2018 to seek leave to apply for judicial review against the decision of the Board.

The judge’s decision

11.  The applicant was absent at the hearing before the judge on 23 August 2018.  He later produced an attendance certificate issued by a hospital and requested another oral hearing.  He was absent at the adjourned hearing on 14 September 2018 without providing any explanation.  The judge therefore proceeded to deal with his application in his absence.

12.  The judge considered that there was nothing amiss arising from the alleged late provision of the hearing bundle as the applicant had been well familiar with most of the documents in the bundle, and he never raised any complaint and did not request an adjournment before the Board.  The other grounds for his intended challenge are just broad and vague assertions without particulars or specifics or elaborations.  The judge held that there was no error of law or procedural unfairness in either of the decisions of the Director or of the Board, and they have applied high standards of fairness in their consideration and assessment of the applicant’s claim.  The leave application was refused on 7 December 2018 accordingly.

The grounds of appeal in the intended appeal

13.  In the applicant’s written submissions, he (1) stressed that high standards of fairness are required in the determination of a torture claim^[7] and (2) submitted that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility^[8].

Analysis and disposition

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account these factors: (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.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The judge’s order was made on 7 December 2018.  He took out summons in the court below on 31 December 2018.  He was late by 10 days.  This was not a substantial delay.

16.  In his affirmation filed on 31 December 2018 in the proceedings below, he explained that he received the letter from the court late so he needed an extension of time.  He did not state when he received the judge’s written decision.  Given the relatively short delay in this instance, his explanation can be regarded as acceptable.  The court would still assess whether he can show reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[9].

17.  In assessing the merits of the intended appeal, the court would adopt the following legal principles in dealing with appeals of non‑refoulement cases^[10]:

(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 Country of Origin Information 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.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had 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.

18.  The applicant’s intended grounds of appeal are vague and without particulars.  The judge has reviewed the adjudicator’s decision with rigorous examination and anxious scrutiny, and has provided detailed reasons for his decision.  The applicant has failed to put forward any viable ground for the appeal court to reverse the judge’s decision. 

19.  As the applicant has not shown any prospect of success in the intended appeal, we dismiss his summons for leave to appeal against the judge’s decision out of time.

20.  Further, as his renewed application is entirely without merit, we make a further order under Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be considered at an oral hearing inter partes.