Re Mohammed Roni Khan

CAMP 187/2019

[2020] HKCA 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 187 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 721 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.This is the applicant’s renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 6 March 2019 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by Deputy High Court Judge Bruno Chan (“DHCJ Chan”) on 24 July 2019.

2.The applicant had filed an affirmation, and also lodged a written submission in support of his application.

3.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 affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 9 April 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 25 May 2016 and 12 July 2017 rejecting his non-refoulement claim.

5.The applicant is a Bangladeshi national. He came to Hong Kong on 3 May 2006 and was permitted to remain as a visitor for two weeks.  He overstayed and was arrested by the police on 1 November 2009. He made a torture claim on 3 November 2009, which was rejected by the Director on 16 August 2013, and the appeal was dismissed by the Board on 10 October 2013.    

6.In June 2013, the applicant also raised a non-refoulement claim based on his fear of being harmed or killed by supporters of Awami League (“AL”). The applicant’s claim was set out in details in the Director’s first decision at [9], and summarised by the Judge in [3] to [11] of the Form CALL-1 dated 6 March 2019[1]. The applicant’s case, in gist, is that he was a member of the Bangladesh Nationalist Party (“BNP”), and had taken part in fights between AL and BNP. During the 2006 election, he assisted a BNP candidate in his election campaign despite warnings from AL supporters.  He was attacked by the AL supporters and was asked to join AL.  He refused and had to go into hiding to avoid the AL supporters.  Fearing for his personal safety, he left Bangladesh and came to Hong Kong.   

7.By his two decisions, the Director rejected the applicant’s claim.  The first decision covers the BOR 3 risk[2] and persecution risk[3] grounds, and the second decision covers the BOR 2 risk[4] ground.

8.The applicant’s appeal to the Board was heard on 1 March 2018.  By its decision dated 9 April 2018, the Board dismissed the appeal.  Primarily, the Board found the applicant’s evidence incredible.  The Board did not accept the AL people would still be pursuing the applicant after all these years, and that, in any event, internal relocation and state protection were reasonably available.

9.On 25 April 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He raised the following grounds in support of the application:

(1) The Board had unlawfully fettered its discretion by refusing the applicant’s appeal for the reason that he failed to satisfy the requirements on all the applicable grounds.

(2) The adjudicator acted in a procedurally unfair manner in handling the applicant’s appeal.

(3) The Board’s decision was unreasonable and irrational in the public law sense or was procedurally unfair.

(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 on risk of torture.

(6) The Board failed to conduct sufficient research and inquiry into the country of origin conditions and dismissed the applicant’s appeal in an unfair manner.

(7) The Board failed to evaluate whether there existed a consistent pattern of gross, flagrant or mass violations of human rights in Bangladesh.

(8) The Board failed to give weight to relevant country of origin information (“COI”) and had relied on outdated COI.  The Board’s decision was thus Wednesbury unreasonable.

(9) The Board attached weight to irrelevant, incorrect and inaccurate matters and did not take into facts that favoured the applicant’s case.

(10) The Board failed to call for psychological and psychiatric reports in respect of the applicant.

(11) The Board had applied the wrong standard of proof.

(12) There were failings on the part of the lawyer assigned by the Duty Lawyer Service, resulting in a lack of and/or insufficient legal representation. 

10.In his affirmation in support of the application for leave to apply for judicial review, the applicant complained that the Director and the Board wrongly assessed and refused his case.  He asserted that he would be killed by his enemies if refouled. 

11.Having considered the papers filed by the applicant, the Judge came to the view that the intended judicial review was not reasonably arguable, and had no realistic prospect of success.  He set out his reasons for refusing to give leave to apply for judicial review at [40] to [47] of the Form CALL-1 as follows:

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

41. 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.’

42. The Applicant complained there were a lack of and/or insufficient legal representation. However, he had been represented by the Duty Lawyer Service at all stages of the two-tier screening process.

43. The Applicant complained there were failures by the assigned duty lawyer. Yet, he failed to specify what the failures were. The Adjudicator disbelieved the Applicant's claim. He found there was no risk faced by the Applicant. There was no need then 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.

44. For the same reason, there was no need to consider state acquiescence. Nevertheless, the Adjudicator on balanced study of COI found reasonable state protection and internal relocation were both available to the Applicant in any event.

45. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognized or simply hearsay.

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

47. 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 endeavor 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.”

12.The 14-day period for the applicant to appeal the decision of the Judge, as stipulated in Order 53, rule 3(4) of the Rules of the High Court, expired on 20 March 2019.  On 14 May 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  DHCJ Chan heard the application on 27 June 2019, and by his decision handed down on 24 July 2019[5] dismissed the application.  On 7 August 2019, the applicant filed the present summons and an affirmation in this Court to renew his application for leave to appeal out of time.

13.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 success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

14.The applicant was late by seven weeks, which is a substantial delay.  Before DHCJ Chan, the applicant said he had not received the Judge’s decision and he only learned of the outcome of his application when he reported to the Immigration Department.  The case file showed that the Form CALL-1 was mailed to the address provided by the applicant and it had not been returned through the post.  The applicant confirmed that he had not changed his address.  DHCJ Chan found the defendant’s explanation unsatisfactory.  In the present application, the applicant reiterated that he did not receive the Judge’s decision.  We agree with DHCJ Chan’s view that this was not a satisfactory explanation for the delay.  Nevertheless, what is more important is the prospect of the applicant’s intended appeal.  

15.The applicant did not provide any draft grounds of appeal for his intended appeal.  He merely stated in the summons that he was not satisfied with the judges’ decisions.  

16.In the written submission, the applicant asked the Court to visit his country and to investigate his case properly.  He complained that the court just asked him questions and found fault with him.  He argued that since the court required him to pinpoint errors of law, he should be provided with a lawyer.

17.This Court had repeatedly emphasised that (1) assessment of evidence, COI materials and risk of harm are primarily within the province of the Board (and the Director), and the court will not intervene by way of judicial review unless there are valid public law grounds: see, for example, Nupur Mst v Director of Immigration [2018] HKCA 524 at [14] and Re Islam Rafiqul [2018] HKCA 570 at [14(1)]; and (2) a non-refoulement claimant did not have an absolute right to legal representation at all stages of the proceedings: Re Zahid Abbas [2018] HKCA 15. 

18.In the present case, the applicant has failed to point to any proper basis for the Court to interfere with the findings made by the Board and its conclusion that the applicant’s case was incredible.  As to his argument on legal representation, the applicant was legally represented at all stages of the two-tier screening process.  Other than making a general assertion that he should be provided with a lawyer, the applicant had not specified how the fact that he was unrepresented in the court below had prejudiced him.

19.We are of the view that the intended appeal has no prospect of success.  This being the case, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 7 August 2019.

20.As the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing. 

The applicant, unrepresented, acted in person.