Re Miah Bachchu

CAMP 298/2019

[2020] HKCA 734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 298 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 88 OF 2017)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

Introduction

1.On 2 February 2018, by way of a decision (“the Judge’s Decision”) attached to a Form CALL-1 ([2018] HKCFI 200), Chung J (“the Judge”) 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 17 March 2017 (“the Board’s Decision”).

2.In the Board’s Decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 18 September 2014 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.On 2 September 2019, the applicant sought extension of time to appeal the Judge’s Decision.  Under Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant has 14 days to appeal the Judge’s Decision, which expired on 16 February 2018. The applicant was therefore more than 18 months out of time.

4.On 8 November 2019, by way of an order, Deputy High Court Judge KW Lung (“DHCJ Lung”) dismissed the applicant’s summons for want of prosecution as the applicant was absent at the hearing.

5.By a summons filed on 27 November 2019, the applicant renewed his extension of time application before this Court.

Background

6.The applicant is a national of Bangladesh.  He entered Hong Kong on 16 June 2006 as a visitor and was allowed to remain until 30 June 2006.  He made two trips to Mainland China and re-entered Hong Kong with permission to stay until 30 July 2006.  He overstayed and was arrested by the police on 5 May 2008 for criminal offences.  He lodged a torture claim on 24 June 2008.  He was released on recognizance on 21 August 2008 after serving imprisonment terms for the criminal offences.

7.The applicant’s claim was based on the fear that, if he was returned to Bangladesh, he would be killed by supporters or members of Bangladesh Nationalist Party (“BNP”) because he refused to join them.  The factual background was summarized at paragraph 9 of the Director’s Decision and paragraphs 15 - 47 of the Board’s Decision.

8.Briefly stated, the applicant claimed that his whole family had been supporters of the Awami League (“AL”) and his father was the president of AL branch at union council level for many years up to 1992.  Since 1987, he had been with his father in AL’s rallies and meetings and he claimed that he was targeted by members of BNP.  In 1992, his house was attacked by suspected members of BNP.  The day after the attack, his father moved the whole family to live in another village up till 1996.  In 2001, the applicant joined the student wing of AL.  Later, he was asked to either join BNP or donate to BNP. The applicant did not take this demand seriously.  As a result, in 2003, the members of BNP filed a false accusation against the applicant, resulting him being sentenced to 10 years’ imprisonment by the local court in his absence.  He fled his home village to avoid being arrested by the police.  In 2004, the applicant joined the young wing of AL but he had been on the run from 2004 to 2005 as his own party members were jealous of his membership in the young wing.  In 2006, he was informed that his father’s shop was attacked by suspected members of BNP and his brother was injured in a fight.  The applicant was told by a villager that if he didn’t leave the village he would be killed.  Out of fear, he fled to Hong Kong.  While the applicant was in Hong Kong, he was told that his family members were assaulted for the information about the applicant’s whereabouts.

The Director’s Decision and the Board’s Decision

9.By way of the Director’s Decision, the Director assessed and dismissed the applicant’s claim.  The Director’s Decision assessed the BOR 3 risk[1], persecution risk[2] and torture risk[3].

10.The applicant lodged an appeal to the Board against the Director’s Decision.  An oral hearing was held on 21 September 2015.  After considering the documents and the applicant’s oral evidence, the Board found that the applicant’s claim failed to satisfy the requisite elements of establishing BOR 3 risk, persecution risk and torture risk.  The Board found that the applicant’s credibility was questionable based on his evidence on the key events.  The Board also found that the applicant’s evidence was mostly speculation and hearsay, and that his documents were unauthentic (paragraphs 49 - 65 of the Board’s Decision).  As a result, the Board dismissed his appeal.

The Judge’s Decision

11.On 21 March 2017, by way of a Form 86, the applicant sought to challenge the Board’s Decision by way of judicial review.  The applicant advanced the following grounds of review, which were succinctly summarized by the Judge at paragraphs 6 - 7 of the Judge’s Decision:

“6. The grounds in support of this application set out in Form 86 can be summarized as follows:

(1) the board acted in a procedurally unfair way;

(2) the board’s decision was unreasonable in that no reasonable tribunal properly directed could have decided in the way the board did;

(3) the board failed to act with greater care when dealing with the applicant who acted in person.

7. Form 86 complains that:

(a) the hearing bundle was sent to the applicant only 5 business days before the hearing;

(b) most of the documents in the hearing bundle (including the written submissions of the Director) were in English;

(c)  due to the short time available and the applicant’s language handicap, the applicant did not fully understand the hearing and was confused.”

12.The Judge heard the application on 28 November 2017.  After the hearing, the Judge refused to grant leave to the applicant to apply for judicial review.  He set out his reasons at paragraphs 8 - 17 of the Judge’s Decision:

“This application

8. As stated in para 3 above, the applicant has not made any complaint against the Director’s decision in this application. On the face of the record, there is nothing inadequate about the Director’s decision. It is therefore proper to infer that the Director’s decision was correctly made.

9. The board’s decision is about 13 pages long (excluding the front page). It was divided into the following headings:

(1) background;

(2) unified screening mechanism (‘USM’);

(3) claim refused (which essentially referred to the Director’s decision);

(4) the hearing (that is, the hearing before the board);

(5) the law (this heading was sub-divided into ‘persecution risk’, ‘BOR 3 [Hong Kong Bill of Rights] risk’ and ‘torture risk’);

(6) the applicant’s case (this heading was sub-divided into ‘attack on family home’, ‘1992-1996’, ‘1996-2001’, ‘joining Chhatra League’, ‘demands from BNP’, ‘false accusation against [the applicant]’, ‘joining Jubo League’, ‘2004-2005’, ‘bus from Nepal’, ‘in Hong Kong’ and ‘current situation’);

(7) discussion (this heading was sub-divided into ‘credibility of [the applicant]’, ‘hearsay and speculation’ and ‘future risk’;

(8) decision (this heading was sub-divided into ‘persecution risk’, ‘BOR 3 risk’ and ‘torture risk’);

(9) conclusion.

10. A comparison of the Director’s decision and the board’s decision shows that the applicant’s case (as summarized in both documents) remained essentially the same. There is therefore no material to show that the applicant has been disadvantaged at the hearing before the board so that:

(a) the applicant has not been to properly advance his case before the board;

(b) the board has misunderstood or omitted the applicant’s case (or any part of it).

(it is noted there is no complaint in Form 86 that there has been misunderstanding or omission on the part of the board, despite the applicant’s alleged lack of understanding and confusion)

11. In relation to the board’s findings on the applicant’s credibility, first, the board’s decision recorded some of the verbal exchange between the board and the applicant (for example, para 16 to 20, 23 to 26, 28 to 34, 36 to 37, 40 to 41, 45 to 46 and 58 thereof). Further, the board’s findings on credibility were based on reasons which were not wrong in principle or could amount to a misdirection or non-direction.

12. In relation to the complaint that the board has acted unreasonably, the board’s decision was based in essence on (i) the rejection of the applicant’s case as being incredible, and (ii) the lack of credible documentary evidence. Similarly, nothing untoward concerning the reasons given by the board about these matters can be found in the board’s decision.

13. Apart from the matters set out in para 7 above (which have been dealt with above), no other facts relating to procedural unfairness have been set out in Form 86 or the applicant’s supporting affirmation.

14. Looking at the whole of the board’s decision, there is no substance in the complaint set out in para 6(3) above. The board’s decision is detailed and comprehensive, and there is no basis to suggest the board has not acted with care and attention, or it has ignored any important part of the applicant’s case.

Conclusion

15. This application has not raised any matter which is reasonably arguable upon further consideration. The application for leave is thus refused.

Other matters

16. At the hearing of this application, the applicant sought an adjournment for him to seek legal aid assistance. He also showed copy of a letter dated 21 September 2017 from the Legal Aid Department. The letter stated in gist that the applicant’s application for legal aid had been refused, and the applicant’s appeal against the refusal had been scheduled to be heard on 2 March 2018.

17. Having considered the materials before me and having heard the applicant at the hearing of this application, I have decided to refuse the application to adjourn the hearing and proceeded to determine this application in the manner stated in this decision. The reason why I so decided was that the matters complained of by the applicant in this application do not give rise to any valid basis for believing that he was at risk of either unfair treatment, or an unjust decision, by the board.”

Application for extension of time

13.On 2 September 2019, after 18 months, the applicant took out a summons for extension of time to appeal the Judge’s Decision.  The applicant in his supporting affirmation explained that he was late because he did not receive any letter.  He stated that “I just come to check the decision then I see an order in my file”.

14.DHCJ Lung directed on 12 September 2019 that the hearing for the applicant’s summons for extension of time would be on 8 November 2019.  However, the applicant was absent at the date of the hearing.  As a result, DHCJ Lung dismissed his summons for want of prosecution.

Renewed application for extension of time to this Court

15.On 27 November 2019, the applicant renewed his application for extension of time to appeal the Judge’s Decision before this Court.  In his summons, he listed the decision of DHCJ Lung on 8 November 2019 as the decision under challenge.  In his affirmation filed on the same date, he said that he was late because he did not receive the letter on time.  However, he did not advance any intended grounds of appeal.

Legal principles

16.Whilst it is technically possible to appeal against a lower court’s decision in refusing an extension of time for appealing, it is more straightforward and economical to renew the application for extension of time before the Court of Appeal: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application against the substantive decision, ie, the Judge’s Decision.

17.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, 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 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: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted.

18.In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal, see: Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Re Ansar Muhammad [2018] HKCA 227; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

19.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.

Discussion

20.In our view, the applicant’s application for extension of time is entirely without merit.

21.A delay of more than 18 months is substantial in the context of the 14-day statutory time limit.  The applicant had failed to provide any cogent explanation as to the delay.  He merely claimed that he did not receive the letter on time without providing sufficient particularities as to why he failed to receive the Judge’s Decision on time.  It is thus clearly not a good reason for such a significant delay.

22.With the substantial and inexcusable delay, the applicant must satisfy the court that the intended appeal has real prospect of success before extension of time is granted: Re Kasirah [2020] HKCA 468, per Yeung VP at [17] - [18]; Caramat Virginia Lobeban & Ors v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [2020] HKCA 276, per Kwan VP at [12] - [14]; Re Mohammed Roni Khan [2020] HKCA 66, per Chu JA, at [14].

23.The applicant did not advance any intended grounds of appeal.  There is simply no basis for this Court to intervene with the Judge’s Decision.

24.Accordingly, we dismiss the applicant’s summons of 27 November 2019.

The applicant acting in person