BEPARI HIRU v. LI WAI-CHI, ESQ. [Decision on Leave Application]

HCAL 681/2018

[2019] HKCFI 1571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 681 OF 2018

___________________

___________________

___________________

D E C I S I O N

___________________

This application

1.  This is the applicant’s application for leave to appeal against Deputy Judge J. Lam’s decision by way of Form call-1 dated 30 January 2019 (“the Court’s Decision”).

2.  The Court’s Decision was made where the applicant asked for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”).

3.  However, the applicant was out of time for taking out the said application for leave to apply for judicial review. In the same hearing, the Deputy Judge dealt with the issue whether extension of time should be granted to him for the application for judicial review of the Board’s Decision.[1] Having considered the merits of his case and for the reasons given in the decision, the Deputy Judge refused to grant him extension of time[2].

4.  In the Court’s Decision, the Court had made an Order that if the applicant wished to appeal against the decision, he had to take out the application for appeal within 14 days from the date of the Court’s Decision. The applicant has now taken out the application for leave to appeal to the Court of Appeal.

A reasonable argument case?

5.  The consideration of whether leave should be granted to the applicant to appeal against the Court’s Decision to the Court of Appeal was laid down by the Court of Final Appeal in Peter Po Fun Chan v Winnie C.W. Cheung, Chief Executive & Registrar of Hong Kong Institute of Certified Public Accountants and Mark Fong, Chairman of the Registration and Practicing Committee of the Society (2007) 10 HKCFAR 676 at §15:

“…The granting of leave to apply for judicial review is a matter for the court’s discretion to be exercised judicially. The test which should be applied is the arguability test. Under this test, arguability must mean reasonable arguability. A claim for relief which is not reasonably arguable could not be regarded as arguable. A reasonably arguable case is one which enjoys realistic prospects of success.”

6.  The Applicant has filed an affirmation in support of his application. In his affirmation, he submitted that he was advised that he had good grounds for the appeal. He exhibited two exhibits in support of his grounds. Exhibit A is Form Call‑1 of Deputy Judge J. Lam. I do not see any valid ground for his appeal in this exhibit. Exhibit B is his written submission, in which he submitted that his application involved “the life and limb are in jeopardy and [the Appellant’s] fundamental human right not to be subjected to torture is involved.” This I agree. The Deputy Judge’s consideration of his application did not deviate from this important basis. See paragraph 36 of the Court’s Decision. Exhibit B refers to the legal principle of “high standard of fairness” as laid down by the Court of Final Appeal in Secretary for Security v Prabakar (2004) 7 HKCFAR 187. Again, the Deputy Judge had not overlooked this important standard of test as seen from the same paragraph of the Court’s Decision.

7.  The Court had held in the Court’s Decision:

“45. The Applicant failed to show any good reason for the almost 12‑month delay in his application for leave for judicial review. The delay was undue and substantial. The prejudice that would be caused to the putative respondent was not insignificant. Discipline should be maintained in the area of public law. The current application involved no issue of general importance. It also had no merits.

46. The Adjudicator dismissed the Applicant’s appeal because it was late. He was of the view that the delay though short by itself was still a serious and significant failure to comply with the strict rules in s. 37ZS and s. 37 ZT of the Immigration Ordinance. The Applicant failed to give any reason for the delay. The Adjudicator found there was no special circumstances that would make it unjust to reject the Applicant’s late filing of appeal.”

Re Qasim Ali CACV 547/2018, [2019] HKCA 430 8 April 2019

8.  When the Court made this Decision, it did not have the benefit of the decision of the Court of Appeal in Re Qasim Ali CACV 547/2018, [2019] HKCA 430 8 April 2019. In this case, the Court of Appeal held that the Adjudicator of the Board was in error in holding that eight days were significant delay and that the Board should consider the merits of the case, though on the papers, before making its decision to refuse the applicant’s appeal against the Decision of the Director of Immigration. In this appeal case, the applicant appealed to the Court of Appeal within time.

9.  The applicant’s delay in this case was two days. However, the Adjudicator considered that the applicant had no good reason for his delay. He also considered that the delay was serious and significant failure to comply with the strict rules in s. 37ZS and s. 37ZT of the Ordinance. Similar to the Qasim Ali case, the Adjudicator dismissed the applicant’s appeal without considering the merits of his appeal.

10.  With the benefit of the Court of Appeal’s decision, it is quite obvious that the Adjudicator’s was in error because he had not considered the merits of the applicant’s appeal before he dismissed his appeal. This Court will be bound by the Court of Appeal’s decision if the applicant took out the application for leave to apply for judicial review against the Board’s Decision within time. Leave should be granted to the applicant for his application.

11.  However, the Deputy Judge considered not only the reasons upon which the Board refused the applicant’s appeal, but also the important factor that the applicant was out of time for taking out the application for leave to apply for judicial review of the Board’s Decision. Here the delay is, as according to the Deputy Judge, about 12 months.

The question for this Court’s consideration

12.  The question before this Court is, given the said Judgment of the Court of Appeal, whether the Deputy Judge should have granted extension of time to the applicant for his application for judicial review despite the fact that he was late for about 12 months without any good reasons.

13.  The Court had considered Order 53 Rule 4(1) of the Rules of the High Court:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)”

14.  The Court held:

“40. It is clear from these provisions that no application can be made after the three-month period unless the Court considers there is a good reason for extending time. The Applicant must provide good reasons for the Court to approve an extension of time. It is a pre-requisite in late application for leave for judicial review.[3] If the court is not satisfied that there is a good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[4]

15.  The Court further held:

“47. The current application for leave for judicial review is unreasonably late. There are no justified circumstances that oblige the court to consider such late application. I refuse to grant the Applicant extension of time. His late application for leave for judicial review is therefore dismissed.”

16.  The Court of Appeal in BL v. Director of Immigration [2016] 2 HKLRD 520 held that if there is no satisfactory explanation for the delay in application for leave to apply for judicial review, expartie leave should be refused without considering other factors [132-133].

17.  The Court of Appeal in Re: Farooq Muhammad CACV 280/2017 [2018] HKCA 183, Poon JA, §10 held that lack of reasonable explanation for the delay will be considered as reason for refusal of leave to the applicant.

Conclusion

18.  In the circumstances, I agree with the Deputy Judge that extension of time should not be granted to him for the application for leave to apply for the intended judicial review. The applicant has no reasonable prospect of success in his intended appeal.

19.  Accordingly, I dismiss his application for leave to appeal against the Court’s Decision to the Court of Appeal.

HCAL681/2018

[2019] HKCFI 205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 681 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

	consideration of documents only
	consideration of documents and the Applicant being absent from court

(1)     Extension of time for application for leave to apply for judicial review of the decision ofTorture Claims Appeal Boarddated 25 January 2017 berefused; and

(2)     Application for leave to apply for judicial review bedismissed.

It is further directed that:

(1)   If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)   When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of no more than 5 pages in support of the application for leave to appeal;

(3)   The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)   If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)   Liberty to apply.

Observations for the Applicant

Background

1.  The Applicant is a national of Bangladesh. He is now aged 28 (DOB: 10 April 1990).

2.  The Applicant claimed he would be harmed or killed by some people of the Awami League (“AL”) because he refused to leave Jamaat Shibir (“JS”), which was the student wing of Jamaat-e-Islam (“JEI”).

3.  The Applicant said his whole family supported JEI. He joined JS in 2010.

4.  In 2012, the Applicant attended a meeting with some JS members. Forty odd armed AL people came. They attacked the JS members. They threatened to kill the Applicant and other JS members if they continued to work for JS. The Applicant was injured but managed to escape.

5.  The Applicant’s uncle made a report to the police. However, the police did not register his complaint and did nothing to help. No reports were made to other police stations due to jurisdiction concern. The local JS leader was not able to help either.

6.  The Applicant stayed in the house of his sister-in-law. He still got threatening calls from his enemies.

7.  In April 2012, the Applicant moved to a place called Madaripur.  Two months later, he found the police and some members of the Chhatra League (“CL”) were looking for him there. [CL was the student wing of AL.] The Applicant believed his enemies had made false accusation to the police. Feeling insecure, he moved to Dhaka where he stayed in his cousin’s place for six months.

8.  In January 2013, ten odd CL members with arms approached the Applicant. They accused him of continuing to work for JS. They beat up the Applicant until he lost consciousness. The Applicant was injured. He did not report the matter to the police because he had lost faith in the police.

9.  The Applicant moved to another place called Sylhet. In February 2013, he was again assaulted by ten odd CL members. He was hurt but managed to escape. Again, he did not make any report to the police.

10.  The Applicant moved further to Gazipur. He stayed in his uncle’s place for one and half years. Nothing special happened but the Applicant learnt the police and the CL people were still looking for him in his home village. The CL people threatened the Applicant’s family that they would kill the Applicant.

11.  The Applicant believed his enemies targeted him because he was affiliated with JS. They wanted him to join AL.

12.  On 16 July 2014, the Applicant left Bangladesh for China. Three days later, he sneaked into Hong Kong and was arrested on the same day, i.e. 19 July 2014. He then lodged a non-refoulement claim.

13.  The Applicant learnt from his family that the Bangladesh police and the CL people were still looking for him. The CL people threatened to kill him.

14.  The Applicant did not think the Bangladesh authorities would protect him. He said JS had been banned in Bangladesh and the authorities were against JS members.

15.  The Applicant thought internal relocation was not viable because AL was the ruling party and had extensive control in the country.

16.  In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) on 16 August 2016 refused the Applicant’s claim with respect to these three applicable grounds: (i) risk of torture,[1] (ii) risk of persecution[2] and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3]. The Applicant appealed to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”). The Board received the Notice of Appeal (“NOA”) on 2 September 2016. The Applicant did not give any reason for his late filing of appeal. On 25 January 2017, the Board refused to accept the Applicant's late appeal against the Director's decision.

17.  On 10 April 2017, the Director refused the claim with respect to the fourth applicable ground: risk of violation of the right to life (BOR2 risk)[4]. There was no appeal filed by the Applicant against the Director's further decision.

18.  One odd years later, on 19 April 2018 the Applicant applied for leave for judicial review against the Board's decision dated 25 January 2017.

Timeline

19.  Things happened in this order: –

2014-7-16	The Applicant left Bangladesh for China.
2014-7-19	The Applicant entered Hong Kong illegally from China. He was arrested by the police.
2014-7-21	The Applicant raised a non-refoulement claim.
2016-8-16	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”]
2016-9-2	The Board received the Applicant’s Notice of Appeal. It was late.
2017-1-25	The Adjudicator refused the Applicant’s late filing of appeal. [“the Board's decision”]
2017-3-22	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-4-5	The Applicant failed to submit any additional facts by the deadline or thereafter.
2017-4-10	The Director refused the Applicant's claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] There was no appeal against the Director's further decision.
2018-4-19	The Applicant applied for leave for judicial review against the Board's decision dated 25 January 2017. It was late.

Respondent/Interested party

20.  The Unified Screening Mechanism is a two-tier process.  The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.

21.  In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]

22.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party.  Thus, the Adjudicator is the putative respondent; the Director is the putative interested party.

The Director's decision

23.  In his decision dated 16 August 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to those three applicable grounds.

24.  On 10 April 2017, the Director further refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: BOR2 risk.

The Board's decision

25.  On 2 September 2016, the Applicant appealed against the Director's decision dated 16 August 2016. He did not appeal against the Director's further decision dated 10 April 2017.  

26.  The Director's decision was sent to the Applicant by mail c/o the Duty Lawyer Service (“DLS”) on 16 August 2016 [Tuesday]. According to s. 37ZV(3) of the Immigration Ordinance Cap. 115,  a notice so sent is presumed in the absence of evidence to the contrary to have been served or given and received on the second working day after it is sent. Therefore, in the present case the 14-day period was to run after 18 August 2016 (Thursday). It would end on 1 September 2016 (Thursday). However, the NOA from the Applicant was only received by the Board on 2 September 2016. It was late.

27.  The Applicant did not give any reason in his NOA to explain why he was late in filing his appeal.

28.  On 2 September 2016, the Board issued a letter to the Applicant to ask him why his appeal was late. The Applicant acknowledged receipt of the letter but did not reply to the Board.

29.  The Adjudicator noted the Applicant failed to give any reason in his NOA for his lateness and failed to reply to the Board after the Board had issued a letter to ask him why his filing of appeal was late. The Adjudicator considered the regime governing late filing of appeal was strict. He was of the view that the delay though short by itself was still a serious and significant failure to comply with the rules in s. 37ZS and s. 37ZT of the Immigration Ordinance. The Applicant did not give any reason for his delay. The Adjudicator found there were no special circumstances that would make it unjust to reject the Applicant’s late filing of appeal. He thus dismissed the Applicant's late appeal.

Grounds for judicial review

30.  In Form 86 and his affirmation, the Applicant complained he was not legally represented in his filing of appeal. His appeal to the Board was late because he was in jail and it was not easy to get things done or on time. The Applicant also said he was uneducated and did not know English. He further complained he received the Board’s decision (dated 25 January 2017) only on 17 April 2017

31.  In Form 86, the Applicant mentioned he had applied to the Legal Aid Department (“LAD”) and time was required. That caused delay. He said he also had to obtain all relevant documents from DLS and the Security Bureau.

32.  Further in Form 86, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation. He accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information ("COI"); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.

Court hearing

33.  The hearing was scheduled for 23 July 2018. The Applicant was absent. A Bengali interpreter called him on the phone. The Applicant told the interpreter that he got the notice of hearing but did not understand its content. He said he was sleeping then and could not come immediately to the court. The Applicant then switched off his phone.

34.  The court has not heard further from the Applicant.

Discussion

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

36.  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’.[6] 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.” [7]

37.  The Applicant not only filed his appeal late to the Board. He also filed the current application for leave for judicial review late. The Board's decision dated 25 January 2017 was sent to the Applicant in prison then. [The Applicant was arrested by the police for unlawful employment in late October 2015. He was convicted on 11 January 2016 and sentenced to 15 months’ imprisonment.] The Applicant, however, only filed his application for leave for judicial review almost 15 months later on 19 April 2018.

Late application for leave for judicial review

38.  Order 53 Rule 3(1) of the Rules of the High Court states: –

(1)  No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

39.  Order 53 Rules 4(1) and (2) of the Rules of the High Court read: –     

(1)  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)

(2)  Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

40.  It is clear from these provisions that no application can be made after the three-month period unless the Court considers there is a good reason for extending time.  The Applicant must provide good reasons for the Court to approve an extension of time. It is a pre-requisite in late application for leave for judicial review.[8]  If the court is not satisfied that there is a good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1).  In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[9]

41.  In the present case, the Board’s decision was issued on 25 January 2017. The Applicant only applied for leave for judicial review almost 15 months later on 19 April 2018. Excluding the 3-month grace period for filing, he was almost late by 12 months.

42.  The Applicant said he received the Board’s decision (dated 25 January 2017) only on 17 April 2017. The Board's decision was sent to Pik Uk Prison on 25 January 2017. The Applicant's name was clearly stated on the covering letter of even date together with his prisoner number (P 392562). It was implausible that the Applicant did not get the Board's decision in January 2017 but only in April 2017.

43.  The Applicant mentioned he had made application to LAD (Legal Aid Department). Time was required and that caused delay. In the court file, there was only a record of the Applicant's applying for legal aid on 21 May 2018. The Director of Legal Aid refused his application on 11 June 2018. I cannot see how legal aid matters had contributed to the Applicant's late application for leave for judicial review.

44.  The Applicant also attributed his delay to having to obtain all relevant documents from DLS and the Security Bureau. There was simply no evidence to support his vague assertion.

45.  The Applicant failed to show any good reason for the almost 12-month delay in his application for leave for judicial review. The delay was undue and substantial. The prejudice that would be caused to the putative respondent was not insignificant. Discipline should be maintained in the area of public law. The current application involved no issue of general importance. It also had no merits.

46.  The Adjudicator dismissed the Applicant's appeal because it was late. He was of the view that the delay though short by itself was still a serious and significant failure to comply with the strict rules in s. 37ZS and s. 37ZT of the Immigration Ordinance. The Applicant failed to give any reason for the delay. The Adjudicator found there were no special circumstances that would make it unjust to reject the Applicant’s late filing of appeal.

Conclusion

47.  The current application for leave for judicial review is unreasonably late. There are no justified circumstances that oblige the court to consider such late application. I refuse to grant the Applicant extension of time. His late application for leave for judicial review is therefore dismissed.

Dated 30^th day of January 2019

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1