Litu Mia v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 176/2020

[2021] HKCA 535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 176 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1278 OF 2018)

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Before: Hon Kwan VP and Chu JA in Court

Date of Judgment: 23 April 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 10 June 2020, Deputy High Court Judge Bruno Chan 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.On 7 July 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 24 June 2020.  The application was heard by the judge on 6 August 2020 and dismissed on 10 September 2020[2].

3.On 25 September 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 10 June 2020.

4.The applicant is a national of Bangladesh.  He is 41 years old.  He entered Hong Kong illegally in October 2013 and was arrested by police on 14 November 2013.  He raised a non-refoulement claim on 27 June 2014 on the basis that if he returns to Bangladesh he will be harmed or killed by a local leader of the rival political party Awami League (“AL”) for failing to pay extortion money.

The Director’s decision

5.By a Notice of Decision dated 17 March 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including 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.  An oral hearing was conducted before the Board on 13 June 2018.  The Board found that the applicant’s case is not genuine because of the significant inconsistencies in his evidence.  The Board held that there is no substantial ground for believing that the applicant would be in danger of being tortured or killed by the AL supporters or members.  The Board considered that it would be safe for the applicant to return to his home country and dismissed the appeal on 22 June 2018.

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 4 July 2018 to seek leave to apply for judicial review against the decision the Board.  He put forward the following grounds for his intended challenge:

(1)  misdirection in law for the adjudicator to wrongfully take into account that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there would be risk of torture in future;

(2)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into Country of Origin Information (“COI”) and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to take into account or to put proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5)  irrationality in the adjudicator’s failure to analyse and assess whether state protection exists in Bangladesh and misdirecting himself as to the extended meaning of state protection;

(6)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(8)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

The judge’s decision

8.DHCJ Bruno Chan heard the leave application on 11 September 2019.  The judge found that the applicant’s complaint for which he has provided some elaboration is the one concerned with the lateness in providing him with the hearing bundle before the Board hearing.  The judge considered that there is nothing amiss arising from the hearing bundle as most of the documents should be well familiar to the applicant as they had been made available to him earlier when he still had legal representation and he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal at the hearing before the Board. 

9.As for the rest of the applicant’s grounds, the judge held that they are just broad and vague assertions without any particulars or specifics or elaborations as to how they apply or are relevant to his case and how the Board had erred in the decision.  The judge assessed there is no error of law, no procedural unfairness or failure to apply high standards of fairness in the decisions of the Director and the Board. Therefore, the judge decided that there is no prospect of success in the intended judicial review and refused the leave application on 10 June 2020.

Grounds of intended appeal

10.The applicant stated in his summons that he did not find any argumentative point from the judgment and the judge only copied the decisions of the Director and the Board.  In his supporting affirmation, he only stated that he does not agree with the judge.

11.As the applicant has failed to comply with the unless order made by the Registrar of Civil Appeals on 2 December 2020 to lodge his written submissions within the prescribed time (ie by 22 December 2020), he is deemed to be relying only on the representations made in his summons and affirmation filed in support of the present application and is debarred from lodging any written submissions.

Analysis and disposition

12.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.

13.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 10 June 2020.  The applicant took out a summons at the court below on 7 July 2020.  He was late by about 13 days.

14.The applicant explained at the hearing before the judge on 6 August 2020 that he did not receive the decision until 6 July 2020 after the time for appeal has expired. 

15.The decision was sent to the applicant by post on 10 June 2020 and the applicant did not produce the envelop with the postmark to support his explanation.  However, in view of the impact of the pandemic on the mail service and the fact that the delay here was only 13 days, we would give the applicant the benefit of doubt and accept his explanation for the delay.

16.The court would still assess whether the applicant can show reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[7].

17.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.

18.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.

19.The applicant’s ground stated in his summons is unmeritorious.  In particular, the judge has given his own assessment of the leave application and his reasons for rejecting the same in §§10 to 17 of the decision dated 10 June 2020.  The applicant failed to identify any errors of law, any failure to take account of relevant matters already placed before the court or any other mistakes in the judge’s decision in refusing to grant leave to apply for judicial review. 

20.For the above reasons, the applicant does not have any prospect of success in the intended appeal.  We therefore refuse to extend time to appeal against the judge’s decision and dismiss the summons filed on 25 September 2020.

The Applicant, acting in person

[1] [2020] HKCFI 445

[2] [2020] HKCFI 2173

[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