S M Showan v. Torture Claims Appeal Board

CAMP 87/2021

[2021] HKCA 1867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 87 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 980 OF 2017)

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Before: Hon Au and Chow JJA in Court

Date of Written Submission: 24 May 2021

Date of Judgment: 14 December 2021

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JUDGMENT

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

INTRODUCTION

1.By summons dated 17 March 2021, the Applicant applied to this Court for an extension of time to appeal against Deputy High Court Judge Bruno Chan’s order dated 13 July 2018 refusing to grant leave to apply for judicial review (“Leave Decision”).  The Applicant’s earlier application for an extension of time to appeal was refused by the Judge on 4 March 2021 (“EOT Decision”).  The intended judicial review was directed at the decision dated 9 November 2017 of the Torture Claims AppealBoard (“Board”), dismissing the Applicant’s appeal against the decisions dated 14 June 2016 and 13 July 2017 of the Director of Immigration (“Director”) rejecting his claim for non-refoulement protection.

2.Having considered the papers, we are of the view that it is appropriate to determine the summons dated 17 March 2021 without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

3.The Applicant is a national of Bangladesh.  He entered Hong Kong on 26 April 2014 with permission to remain as a visitor up until 10 May 2014.  The Applicant overstayed in Hong Kong and was arrested on 16 May 2014 by the police.  After he was referred to the Immigration Department, he raised a claim for non-refoulement protection.

4.The Applicant’s claim was that, coming from a family of prominent members of the Bangladesh Nationalist Party (“BNP”), he joined the BNP in 1991 and was elected the joint secretary of the BNP’s youth wing central committee in 2011.  In the general election in 2014, there were clashes between supporters of BNP and the rival party Awami League (“AL”). On 5 January 2014 AL members came to the Applicant’s home but could not find him.  They told his parents that they would kill him unless he quit BNP and joined AL.  The Applicant went into hiding after being told about the threats.  He later heard that AL members brought false charges against him for robbery and attempted murder and that the police had raided his home, which was later burned down by AL supporters.  The Applicant felt unsafe and arranged to fly out of Bangladesh on 25 April 2014.  He was attacked on the way to the airport by men whom he suspected to be associated with AL. They attacked him with wooden clubs and iron rods until other BNP members arrived to save him.  After receiving treatments, the Applicant managed to fly for Hong Kong on the same day.  He claimed that, if he were to return to Bangladesh, he would be harmed or killed by AL members.

5.By a Notice of Decision dated 14 June 2016 and a Notice of Further Decision dated 13 July 2017, the Director rejected the Applicant’s claim.  His decisions covered torture risk^[1], BOR 2 risk[2], BOR 3 risk^[3], and persecution risk^[4]. The Director did not accept the Applicant’s claim, as there was no reliable evidence to corroborate his allegations, such as that the attack on him was by men associated with AL.  The Director did not accept that AL would still target him given his relatively unimportant position in BNP, or that they were still adversely interested in him after the lapse of time.  The Director also found that, in the absence of evidence of any state involvement, and based on objective Country of Origin Information (“COI”), state protection and internal relocation would be viable and available to the Applicant.

6.The Applicant appealed the Director’s decisions to the Board.  He attended a hearing on 4 October 2017, during which he gave evidence and answered questions put to him by the Board.  The Board dismissed his appeal on 9 November 2017.  The Board found the Applicant’s claims incredible, unreliable and implausible.  The Board was not persuaded that the risks as claimed, even if true, would still exist after the lapse of time.  It also found that state protection was available to the Applicant, and internal relocation would be viable for him.

THE LEAVE DECISION

7.On 29 November 2017, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s decision. His grounds for review related to the following 2 complaints:

(1)  he was provided with the hearing bundle only a few days before the appeal hearing, and with most of the documents being in English, there was insufficient time to prepare his appeal and to find an interpreter to assist him; and

(2)  the Board had relied on materials which were not officially recognised or were hearsay or outdated in finding that it was safe for him to return to Bangladesh.

8.The Judge did not accept the Applicant’s complaint that he was given insufficient time to prepare, holding that ([2018] HKCFI 1503):-

“11. … [the Applicant] still had six days to prepare for his appeal with most of the documents which he should be well familiar with including his own [Non-refoulement Claim Form], records of his screening interviews and the decisions of the Director all of which had earlier been already provided to him while he still had legal representation, and that at his appeal hearing he was able to testify and answered questions with the assistance of an interpreter without any difficulty but during which he never raised any complaint about the delay of his hearing bundle or requested for further time for preparation.”

9.As for the complaint that the Board had considered unofficial, hearsay or outdated materials, the Judge held that:-

“12. … the applicant has failed to provide any particulars or specifics in support of this complaint, and upon careful examination of those COI referred to in … the decision of the Director as well as those considered by the Board, I do not find any merits in this complaint of the applicant.

13. Given the fact that his claim was rejected essentially on his credibility for those clear reasons and findings of the Board, any attempts by the applicant to criticize the Board in its use or reliance of COI in its assessment of the situations in Bangladesh is in my judgment both futile and pointless.”

10.The Judge went on to refuse the application for leave for judicial review, holding that:-

“14. … having proceeded to consider the decisions of both the Directorand the Board with rigorous examination and anxious scrutiny, I do not find any error oflaw or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

15.     For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

THE EOT DECISION

11.On 3 April 2019, the Applicant applied for an extension of time to appeal against the Leave Decision, as he was out of time by more than 8 months.  At a hearing on 21 January 2021 before the Judge, the Applicant explained that the reason for the delay was his detention by the police and later in the Castle Peak Bay Immigration Centre until released on recognizance in October 2020.

12.In the EOT Decision, the Judge held that a delay of more than 8 months was very substantial and excessive.  He did not accept the Applicant’s explanation for the delay, holding that, while there would be inevitable restrictions and delays in relation to correspondence and access to legal assistance while he was under detention, these could not account for the Applicant’s serious delay.

13.On the merits of the intended appeal, the Judge observed that ([2021] HKCFI 376):-

“6. … [the Applicant did not] put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable in his summons, while in his affirmation he simply just stated that the decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country but without providing any details or particulars or elaboration as to how it was so, and at the hearing of his summons he merely repeated his claim that his life would still be in danger in his home country.”

14.The Judge refused to grant to the Applicant extension of time to appeal the Leave Decision, as no error had been clearly and properly identified by the Applicant.

THE PRESENT APPLICATION

15.By summons dated 17 March 2021, the Applicant renewed his application for an extension of time to appeal the Leave Decision.  He set out his grounds in support of the renewed application in an affirmation of the same date, which may be summarised as follows:-

(1)  the EOT Decision was irrational (Ground 1);

(2)  the grounds for refusing time extension were unacceptable and unexplainable (Ground 2);

(3)  he would face danger and harassment in Bangladesh (Ground 3), and

(4)  he would have been killed by his enemies in Bangladesh if he had stayed or remained there (Ground 4).

16.In his written submissions dated 24 May 2021, apart from repeating his predicament if he were to return to Bangladesh[5], the Applicant made further complaints which may be summarised as follows:-

(1)  The Judge did not analyse his claim properly[6];

(2)  The Judge did not apply the principle of irrationality to the decisions of the Director and the Board[7];

(3)  The Judge did not apply high standards of fairness[8];

(4)  The Judge did not apply the principle of procedural fairness, as the Director and the Board were required to give reasons for their decisions[9];

(5)  The Judge did not carefully consider the problems he would face in Bangladesh[10];

(6)  The Leave Decision was wrong[11];

(7)  The Board failed to give him sufficient chance to provide evidence[12];

(8)  The Board relied on unofficial and hearsay materials[13].

DISCUSSION

17.As the Court of Appeal held in Farrukh Zaib [2020] HKCA 408 at [22], 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 respondent if an extension of time were granted.

18.On the Applicant’s delay of more than 8 months, the Judge was correct to hold that it was excessive, and reject the Applicant’s explanation for the delay for the reasons he gave.

19.On the prospect of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing his decision if an applicant 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 (Farrukh Zaib [2020] HKCA 408 at [24]). General and bare assertions without any specific particulars are not proper grounds of appeal (Farrukh Zaib [2020] HKCA 408 at [28]; Re Mizan Sikder [2019] HKCA 20 at [17]).

20.The complaints set out in the Applicant’s affirmation dated 17 March 2021 or written submissions dated 24 May 2021, such as that the Judge did not analyse his claim properly or did not apply principles of irrationality, were without specific particulars.  The complaint that the principle of procedural fairness was not observed because of the absence of reasons for a decision is unsustainable because both the Director and the Board gave full and proper reasons.  The complaint that the Board did not give him sufficient chance to provide evidence, insofar as this complaint is based on the allegation that he was not given sufficient time to prepare for the appeal hearing, was considered and rejected by the Judge, as was the complaint that the Board relied on unofficial and hearsay materials.  No errors in the Judge’s decision have been identified by the Applicant.  The repetition of his alleged predicament were the Applicant to return to Bangladesh is not a viable ground of appeal.

21.The Applicant has failed to identify any proper grounds of appeal.  There is no merit and no prospect of success in his intended appeal against the Leave Decision.  The application for extension of time to appeal is refused and the Applicant’s summons dated 17 March 2021 is dismissed.

The Applicant, acting in person