RE UDDIN ARMAN ZIA

CAMP 33/2018

[2019] HKCA 1140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 396 of 2017)

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J U D G M E N T

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

1.  On 1 June 2018, this Court (Chu and Barma JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Woodcock given on 5 March 2018 refusing him leave to apply for judicial review.     

2.  On 7 August 2019, the applicant filed a notice of motion together with two affirmations to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmations and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.     

6.  The applicant’s notice of motion was filed out of time.  While this Court has power under section 24(5) of the Ordinance to extend the time for the applicant to file the notice of motion, we are of the view that we should not do so in this case for the reasons set out below.

7.  Firstly, the delay in this case is more than 13 months, which is very serious delay.  The applicant stated in one of his affirmations that he did not know about the court’s refusal of his application until after he came to the court on 5 August 2019 and was given a copy of the court order.  He explained he approached the court after receiving a telephone call from an immigration officer.  We do not find this a satisfactory explanation for the delay. This is because a copy of the judgment was posted on 1 June 2018 to the address provided by the applicant in the summons and affirmation filed for his application for leave to appeal, and it has not been returned by the post office.  The applicant, however, has not explained why the judgment did not reach him.

8.  Secondly, the matters stated in the notice of motion do not amount to viable grounds for granting leave to appeal.  Under section 22(1)(b) of the Ordinance, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

9.  In the notice of motion, the applicant put forward the following matters as his proposed grounds of appeal:

(1)  It is not true that there is no substance in the application.

(2)  He did not make a complaint against the poor performance of the duty lawyer because he would be “picked out for misappropriating by the adjudicator”.

(3)  He did not have enough time to address the appeal bundle. 

10.  In one of his affirmations, the applicant out forward two additional grounds, namely,

(1)  The Court was wrong in law to hold there was no state acquiescence or involvement.

(2)  The Court failed to find out the clear details of the current situation in Bangladesh.         

11.  As to the written submission, it set out the applicant’s personal background, various provisions of the International Covenant on Civil and Political Rights, Hong Kong Bill of Rights Ordinance, Cap. 383, Basic Law, United Nations Convention Against Torture, and passages from cases on the duty to act fairly, Wednesbury unreasonableness and state acquiescence.  It argued that the high standards of fairness applied in that the decision had the effect of finally disposing of the applicant’s claim and that, under the common law, the decision maker was under a duty to act fairly and to observe minimum standard of procedural fairness.   

12.  All the matters put forward by the applicant are directed at the assessment of his claim, but do not involve any question of great general or public importance, or otherwise, that ought to be submitted to the Court of Final Appeal for determination.  The requirement for granting leave to appeal under section 22(1)(b) of the Ordinance is therefore not met.  Further, all the proposed grounds and arguments are new points not raised in the application for leave to appeal.  It is not open to the applicant to advance them at this application for leave to appeal to the Court of Final Appeal.                 

13.  For the above reasons, we will not extend the time for the applicant to apply for leave to appeal to the Court of Final Appeal.  The notice of motion is accordingly dismissed.

The applicant, unrepresented, acted in person.

CAMP 33/2018

[2018] HKCA 302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 396 of 2017)

_________________________

_________________________

________________

J U D G M E N T

________________

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

1.  By summons filed on 26 March 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 5 March 2018 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 23 June 2017 dismissing his appeal against the decisions of the Director of Immigration (the “Director”) dated 21 January 2016 and 20 June 2017 rejecting his non-refoulement claim.

2.  Both the Board and the Director have written to the court indicating that they adopt a neutral stance in this application.

3.  The applicant has requested that his application be determined at an oral hearing.  Having considered the papers and the applicant’s written submission, we are of the view that it is appropriate to determine the application on paper without a hearing, pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A.

4.  The applicant is a Bangladesh national.  On 8 January 2015, he flew from Bangladesh to Guangzhou.  He entered Hong Kong illegally on 11 January 2015.  He surrendered himself to the Immigration Department on 9 February 2015.  On 7 May 2015, he made a non-refoulement protection claim.  Under the unified screening mechanism, the Director assessed his claim under all applicable grounds, namely, torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. 

5.  The applicant’s claim is based on his fear that if he were to return to Bangladesh, he would be harmed or killed by people of the Awami League (“AL”) because he was a member of the opposition party, Jamaat-e-Islami (“JI”) and had taken part in election activities organised by JI.  The applicant referred to three incidents of threat and harm to him occasioned by the AL people.

6.  The first incident took place on 1 January 2009 when there was a large rally organised by AL to celebrate their success in the December 2008 election.  The applicant was not at home when 15 or 16 AL supporters forcibly entered his house to search for him to take revenge because he had taken part in JI’s rallies during the election.  They verbally abused the applicant’s family members and said they would kill the applicant when they found him.  To avoid harm, the applicant went to different places and eventually moved to Dhaka where he ran a shop. 

7.  The second incident happened after the election in January 2014.  During the election campaign, the applicant worked for JI and actively participated in the boycott programme organised by JI under the lead of the Bangladesh Nationalist Party.  AL won the election and afterwards began to take revenge on JI supporters.  On 6 January 2014, when the applicant was not in his shop, eight or nine AL members came to ask for his whereabouts.  They verbally abused his employee, poked him with a stick and threw the cash box on the ground.  On learning this, the applicant closed down his shop, stayed home and adopted a low profile.

8.  The third incident took place about one month later when the applicant was out with a friend.  Two AL members spotted him and took him to their office.  Out of fear, the applicant promised not to take part in political activities in future.  On receiving a call from the AL people, the applicant’s brother came to negotiate for his release, and promised to take responsibility for the applicant, who would in future refrain from participating in political activities.  The applicant was released on the same day. During the incident, the applicant was not physically harmed.  He said, however, he was verbally threatened and mentally tortured as the AL people had threatened to hang him, and he remained in fear after his release.

9.  The applicant did not report any of these incidents to police because he considered the police were associated with AL and were under instruction to arrest JI supporters. 

10.  After the third incident, the applicant went to live with his sister in another place for ten months.  He later obtained a passport from the Passport Office, with which he left Bangladesh for Guangzhou.  After he boarded the plane, an AL member telephoned him, saying he knew the applicant was leaving the country but they would get hold of him when he returned.

11.  Upon the Director’s rejection of the non-refoulement claim, the applicant appealed to the Board.  An oral hearing took place on 27 March 2017, during which the applicant elected to answer questions from the Board.

12.  By a decision dated 23 June 2017, the Board dismissed the applicant’s appeal.  On the basis of the evidence supplied by the applicant and other relevant materials, including the Country of Origin Information (COI), and having regard to the relevant law, including decisions of our Final Court of Appeal and the jurisprudence of other jurisdictions and the European Court of Human Rights, the adjudicator found there was no real or substantial risk of torture, violation of life, cruel, inhuman or degrading treatment, or persecution, and concluded that the applicant’s case did not come within the ambit of a torture claim, BOR 2 risk claim, BOR 3 risk claim or a persecution claim.  Separately, the adjudicator also had grave doubts about the credibility and reliability of the applicant’s case.   

13.  The applicant filed his Form 86 on 13 July 2017, naming the Board and the Director as the putative respondents.  A hearing was held on 5 December 2017.

14.  In his supporting affirmation, the applicant complained of procedural impropriety and unfairness in the appeal to the Board and error of law in the Board’s dismissal of his appeal.  The applicant stated that the adjudicator failed to carry out adequate research and inquiry into the conditions of the country of origin, was selective in reviewing the COI and did not take into account matters that are in the applicant’s favour, and did not evaluate and make a finding on the consequences flowing from the threat and assaults.  The applicant also said that the adjudicator failed to consider that the applicant could not submit further information and grounds to support the BOR 2 risk claim because he did not receive the Director’s letter inviting him to provide further representations.  The applicant further complained there was misinterpretation by the interpreter at the hearing before the Board in that he did not have explained to him the meaning of further and additional information on the BOR 2 risk.  The applicant contended, too, that the adjudicator failed to consider and assess whether state protection did exist or whether relocation was in fact available.          

15.  The Judge refused to give leave to apply for judicial review as she considered the intended judicial review was not reasonably arguable and had no realistic prospect of success.  Her reasons are encapsulated in [18] to [25] in the CALL-1 Form:

“18. The applicant submits he did not receive the Director’s letter dated 1 June 2017 prior to his dismissal of 20 June 2017 inviting him to submit further information to support a BOR 2 risk claim within a period of 14 days. He also did not receive the second letter of 20 June 2017. If he had, he would have known that the Director informed him in the letter that he had forwarded a copy of that letter to the TCAB as his appeal was still pending determination for its consideration as part of the appeal process at the same time. That was why the TCAB also considered the applicant’s BOR 2 risk claim as well in its determination dated 23 June 2017.

19. It was a ground of the applicant’s application that he was not given an opportunity by the Director to submit additional information to support a BOR 2 claim because he did not receive the Director’s letter and he was not given an opportunity by the adjudicator to provide additional facts without an additional hearing.

20. There is no merit in the ground that there was procedural impropriety or unfairness by the Director because the applicant admitted during the oral hearing before this court that he moved addresses in March 2017 without informing the Immigration Department which would explain why he did not receive their letters dated 1^st and 20^th of June 2017. In any event, the applicant admitted he would have had no additional information to submit to support a BOR 2 claim that would have established there was a personal and real risk of his absolute and non-derogable right, including his right to life under BOR 2 being violated. He would only have reiterated that he will be tortured by the political leader if he returned to Bangladesh.

21. The adjudicator makes no mention of the fact he received the Director’s Notice of Further Decision dated 20 June 2017 after the appeal oral hearing but before the date of determination. He makes no mention of his decision not to conduct a second oral appeal hearing. Clearly the fact the applicant did not submit any further and additional information would mean there would be no need to do this but it would be best as well as fair to the applicant to explain in writing why there will be no further hearing. However, this omission is not material. There is no merit in this ground. There would have been no necessity to conduct a second oral hearing.

22. In the applicant’s affirmation there are other grounds he relies on; he submits the adjudicator failed to carry out sufficient research into the COI conditions, failed to appreciate the serious level of police corruption and failed to consider human rights abuses as well as the abuses against JI members. I am satisfied the adjudicator did research and reached reasonable conclusions as to the availability of State protection. The applicant never made any police reports and cannot rely on the extended concept of State acquiescence. This is not a case where State authorities or others acting in an official capacity failed to exercise due diligence to protect the applicant.

23. In paragraph 16 of the applicant’s affirmation it seems to suggest he has been tortured physically by the police, suffered some injuries and required stitches. In paragraph 17 it says his opponent has attacked his home and shot his brother. After [sic] his family have approached the police but the police did not investigate this honestly. But these are facts that were not put forward as part of the applicant’s case before the Director or the adjudicator, they seem to be new facts. They are not facts I will take into account. In paragraph 18, the applicant suggests if he is returned to Bangladesh he will face false allegations and the death penalty or life sentence for supporting the JI and being a member of the JI. Again these were not put forward as part of the applicant’s case before the Director or the adjudicator.

24. I have considered with [sic] rigorous examination and anxious scrutiny the papers and grounds of this application. I see no fault in the adjudicator’s decision. I see no fault in how the Director dealt with the BOR 2 risk claim. The applicant’s complaints against them and the procedure undertaken are not made out.

25. I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

16.  The time for the applicant to appeal against the Judge’s decision expired on 19 March 2018[5]. On 26 March 2018, the applicant took out the present summons seeking leave to appeal out of time.

17.  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 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). 

18.  In this case, the applicant was late by seven days.  The applicant explained in his affirmation filed in this application that he was not aware of the handing down of the Judge’s decision, and did not receive the court order and the CALL-1 Form until he visited the Court to make enquiries on 20 March 2018 when he was given a copy of them.  He said his address is “Room E” but the court’s documents were addressed to “Room B”.    

19.  We note that in the Form 86, the applicant stated his address to be “Room B”.  We further note from the case file of HCAL 396/2017 that in a letter dated 14 February 2018 from the applicant to the court asking to be provided with a copy of the court’s judgment/order when it was ready, he gave his address as “Room B”.  The CALL-1 Form and the court order were sent on 5 March 2018 to “Room B”.  If the applicant’s address was changed from Room B to Room E after he wrote the letter of 14 February 2018, it was his responsibility to inform the court immediately. While we are prepared to accept the applicant’s statement under oath that he did not receive the CALL-1 Form and the court order that the court sent to him, we do not consider the reason for it to be satisfactory.

20.  We turn to assess the prospect of the applicant’s intended appeal against the Judge’s decision.  Despite directions given by the Registrar of Civil Appeals on 29 March 2018 and an unless order made on 20 April 2018, the applicant’s written submission was only lodged on 10 May 2018 when the time for it had expired on 25 April 2018.  The applicant explained that it was only on 7 May 2018 that his landlord, who keeps the key to the letter box, passed to him the court’s letter setting out the unless order.  

21.  The applicant did not set out the ground of his intended appeal in the summons.  Both his supporting affirmation and written submission only addressed the reason for the delay in seeking to appeal.  The applicant said in the written submission that as the Registrar’s directions contain no specific instruction as to what the written submission is about, he would focus on the reason for the delay as he had already lodged a summons and an affirmation in support.  He further said that should the court request further submission with regard to the grounds of appeal, he would be happy to comply with the directions.

22.  The summons was taken out by the applicant to apply for permission to appeal the Judge’s decision out of time.  It is therefore incumbent upon him to state in his summons the grounds in support of his application, including the merits of his intended appeal, in addition to accounting for the delay.  The purpose of the Registrar of Civil Appeals’ directions is to regulate the conduct and procedure of the application by giving directions on, for instance, the timetable for filing of written submissions and document bundle (if required) for the application, and their format.  It is not the function of the Registrar and of the court to direct the applicant as to what to state to support his application.  Given that the summons does not set out the grounds for the intended appeal, there is no room for considering the applicant’s suggestion in the written submission to direct the lodgement of further submission on the grounds of appeal.

23.  We have carefully considered the Director’s decisions, the Board’s decision and the Judge’s decision.  We are in agreement with the Judge’s conclusion that the applicant’s intended judicial review is not reasonably arguable and has no realistic prospect of success.  There is no proper basis for the grounds of procedural impropriety and unfairness and error of law.  Among other things, some of the matters that the applicant lately claimed in his affirmation in support of the intended judicial review (see [23] of CALL-1 Form) were not raised in the appeal before the Board, and would further appear to be at variance with the case he put forward to the Director. 

24.  We are of the view that the intended appeal against the Judge’s decision has no prospect of success. This being the case, it would be futile to extend the time for appealing. Accordingly, we refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.

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