Anowar Hossain Pokir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 121/2020

[2021] HKCA 209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 121 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 304 OF 2018)

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Before: Hon Kwan VP and Chu JA in Court

Date of Judgment: 26 February 2021

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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):

1.On 15 June 2020, Campbell‑Moffat J refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.The applicant filed a summons on 3 July 2020 seeking extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 29 June 2020.  The application was heard and dismissed by the judge on 24 July 2020^[2].

3.On 6 August 2020, the applicant took out this renewed application in the Court of Appeal for extension of time to appeal against the judge's decision of 15 June 2020.

4.The applicant is a national of Bangladesh and of 44 years old.  He first arrived in Hong Kong illegally on 20 June 2008 and was arrested by the police on the next day.  He raised a non-refoulement claim on 29 June 2008 and submitted his non-refoulement claim form on 8 September 2016.  His claim was made on the basis that he would be harmed or killed by members of Bangladesh Nationalist Party (“BNP”) if he were to be returned to Bangladesh.

The Director’s decision

5.By a Notice of Decision dated 2 November 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 2 risk^[3], BOR 3 risk^[4], torture risk^[5] and persecution risk^[6].

The Board’s decision

6.The applicant appealed against the Director’s decision to the Board.  The hearing of the appeal was conducted before the Board on 4 October 2017.  The Board found that the applicant's claim was not credible as there were significant inconsistencies in the evidence. The Board also considered that there is no evidence to suggest that the applicant would face any risk of harm from BNP or the Bangladeshi police.  The Board assessed that it is safe and possible for the applicant to relocate to Dhaka in any event.  Thus, the Board dismissed the applicant’s appeal on 29 December 2017.

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 27 February 2018 to seek leave to apply for judicial review against the decision the Board.  He did not give any grounds for the intended judicial review but only stated in his supporting affirmation that the matters before him are true.

The judge’s decision

8.The leave application was considered by Campbell‑Moffat J on the papers as the applicant had not requested for an oral hearing.  The judge held that the intended judicial review does not have any realistic prospect of success as there is no error of law or procedure in the Board’s decision and there is also no evidence of procedural unfairness or failure to adhere to a high standard of fairness throughout.  Therefore, the application was dismissed by the judge on 15 June 2020.

The present summons

9.The applicant did not provide any intended grounds of appeal in the summons before this court to renew his application for extension of time to appeal or in his supporting affirmation.

10.The Registrar of Civil Appeals made an unless order on 2 November 2020 requiring the applicant to lodge written submissions by 4 pm on 20 November 2020.  The applicant did not lodge any written submissions as directed.  Pursuant to the unless order, he is debarred from lodging any written submissions and is deemed to be relying only on the representations made in the summons and the affirmation filed in support of his application for extension of time to appeal.

Analysis

11.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

12.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 15 June 2020.  The applicant took out a summons at the court below on 3 July 2020.  He was late by three days.

13.The applicant explained in his summons and supporting affirmation that his application was late as he had not received the judgment, he does not have money to get advice from solicitors and does not understand English.  Given the short delay in the present case, the applicant’s explanation may be considered as acceptable.  The court would still assess whether the applicant can show there is reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[7].

14.In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.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.

16.In the present application, the applicant failed to put forward any viable ground to reverse the judge’s decision.  He failed to demonstrate 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.

17.For the above reasons, the applicant does not have any prospect of success in the intended appeal.  We therefore dismiss the summons filed on 6 August 2020 and refuse to grant him an extension of time to appeal.

The Applicant, acting in person

[1]  [2020] HKCFI 1231

[2]  [2020] HKCFI 1782

[3]  This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]  This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[6]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7]  Re Gurung Min Bahadur [2018] HKCA 226 §10