Islam Saiful Alias Rana v. Torture Claims Appeal Board

CAMP 58 /2019

[2019] HKCA 750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 58 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 942 OF 2017)

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Before: Hon Kwan VP and Barma JA

Date of Written Submission: 17 April 2019

Date of Judgment: 8 July 2019

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

2.On 2 April 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.On 3 April 2019, the applicant filed a renewed application with the Court of Appeal for leave to appeal against the judge’s decision out of time, with an affirmation in support.

4.The Registrar of Civil Appeals gave directions the following day that the applicant should lodge his submissions for his renewed application on or before 23 April 2019.  The applicant has complied with the directions.

5.The Board informed the court by letter dated 2 May 2019 that it intends to take a neutral stance in this application.  The Director has not responded.

6.Having considered the papers, we think it appropriate to determine this application on paper without an oral hearing pursuant to the power conferred under Order 59 rule 2A(5) of the Rules of the High Court.

7.The applicant is a national of Bangladesh who entered Hong Kong illegally on 21 December 2015 and was arrested by the police on the same day. After he was referred to the Immigration Department, he lodged a non-refoulement claim on 19 January 2016 on the basis that if he were to return to Bangladesh, he would be harmed or killed by a terrorist group known as Jamaat-ul-Mujahideen (“JMB”) for refusing to join them. 

The Director’s decisions

8.By a Notice of Decision dated 24 June 2016, the Director rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

9.By a notice of further decision dated 4 May 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk^[6].  

The Board’s decision

10.The applicant attended the hearing of the appeal against the Director’s decisions before the Board on 16 June 2017.  The Board found, inter alia, that there was no evidence that the actions of JMB caused the applicant to suffer physically or mentally to the necessary level of severity required for non-refoulement protection.  There was no evidence that the applicant’s pain or suffering was inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity for the government.  The Board also considered that state protection and internal relocation alternatives are available.  Thus, the appeal was dismissed by the Board on 26 October 2017.

The intended judicial review

11.The applicant filed a Form 86 and an affirmation on 23 November 2017 to seek leave to apply for judicial review against the decision of the Board.

The judge’s decision

12.The applicant was absent at the hearing before the judge.  The judge considered the application on paper.  The judge found that the Board was perfectly entitled to find that state protection would be available as it was undisputed that JMB is a terrorist group banned by the Bangladeshi government and that proper actions have been taken against that group.  The applicant’s complaint on the late provision of the hearing bundle is without merit as he had been well familiar with most of the documents in the bundle.  Besides, he never raised any complaint and did not request an adjournment before the Board.  The judge considered that the other grounds for the intended challenge are just broad and vague assertions without particulars or specifics or elaborations.  He also held 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 29 June 2018 accordingly.

The grounds of appeal in the intended appeal

13.The applicant attached his grounds of appeal to the present summons and they may be summarized as follows^[7]:

(1)   his life is not safe in Bangladesh;

(2)   the adjudicator did not act properly and it was procedurally unfair;

(3)   the Board erred materially in law;

(4)   the adjudicator was selective in the treatment of Country of Origin information (“COI”) and did not consider the applicant’s situation;

(5)   the judge did not consider the applicant’s position and did not give him time.

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 29 June 2018.  He only took out a summons in the court below on 31 December 2018 to apply for leave to appeal out of time.  He was late by more than 5 months.  His delay is substantial. 

16.In his written submissions, the applicant explained that his delay was due to the fact that he was in prison from 26 January 2018 to 26 November 2018.  Even if it is considered an acceptable excuse for the delay, the court would still assess whether the applicant can show reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[8].

17.In assessing the merit of the intended appeal, the court would adopt the following legal principles in dealing with appeals of non‑refoulement cases^[9]:

18.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.

19.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.

20.In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

21.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.

22.The applicant’s intended grounds of appeal are vague and without particulars.  The judge has provided detail explanation for his decision in paragraphs 12 to 15 of his decision and his determination is well founded.  The applicant failed to put forward any viable ground to reverse the judge’s decision. 

23.The applicant failed to show any reasonable prospect of success in the intended appeal. We therefore dismiss his summons filed on 3 April 2019.

24.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.

The Applicant, acting in person