Akon Monir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 385/2021

[2021] HKCA 1970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 385 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1797 OF 2018)

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BETWEEN

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J U D G M E N T

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

1.By a summons dated 13 September 2021, the Applicant applied for an extension of time to appeal against Deputy High Court Judge K W Lung (“the Judge”)’s order dated 16 September 2019 refusing the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”)  dated 13 August 2018.

2.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.The Applicant is a national of Bangladesh.  He arrived in Hong Kong on 19 July 2013 illegally through China.  He was arrested by the Police on 21 July 2013 and was referred to the Immigration Department on 22 July 2013.  He lodged his non-refoulement claim on 24 July 2013 on the basis that, if refouled to Bangladesh, he would be harmed or killed by his enemy who was affiliated with Awami League because he refused to give them money.  Details of the Applicant’s claim have been summarised by the Judge at §§2-3 of the CALL-1 Form.

4.By a Notice of Decision dated 7 October 2015 and Notice of Further Decision dated 13 April 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decisions”).

5.The Applicant appealed the Director’s Decisions to the Board.  On 13 August 2018, the Board rejected the Applicant’s appeal and confirmed the Director’s Decisions (“the Board’s Decision”).

JUDGE’S DECISION

6.The Applicant filed a Form 86 dated 31 August 2018 seeking leave to apply for judicial review of the Board’s Decision.

7.On 16 September 2019, the Judge refused to grant to the Applicant leave to apply for judicial review and dismissed his application.

8.The Judge was not satisfied that the Applicant had a reasonable chance of success in his intended judicial review.  His reasons were set out at §§11-16 of Form CALL-1:

“11. In his affirmation in support of his application dated 31 August 2018, the applicant relied upon the following grounds:

(1)  the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(2)  the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3)  he was confused at the appeal hearing; and

(4)  the Adjudicator had relied upon hearsay information and outdated material in relation to COI.

12. The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer explained to him. He understood the Board’s Decision as he was assisted by his friend. I explained the Board’s findings above to him and asked if he had any comments. He did not have any comment.

13. It is quite obvious that the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant has no factual basis for his claim. Those grounds above are quite irrelevant. Nevertheless, I shall deal with them.

14. Grounds (1)  to (3)  fail as they are inconsistent with what the applicant said before this Court.

15. Ground (4)  does not assist him. It is his opinion without any evidence in support of it.

16.    The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

9.Under Order 53, Rule 3(4)  of the RHC, the Applicant may appeal against the Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the Applicant within the 14-day period.

10.By a summons dated 6 February 2020, the Applicant applied for an extension of time to appeal the Judge’s order refusing to grant leave to apply for judicial review and for leave to advance a new ground of appeal.  On 9 August 2021, the Judge refused to extend time for the Applicant’s appeal and dismissed his application.

THIS APPLICATION

11.In his summons and supporting affirmation dated 13 September 2021, the Applicant stated that he was in prison and did not receive the Judge’s decision of 16 September 2019.

12.In his written submissions dated 27 September 2021, the Applicant repeated his fears if refouled back to Bangladesh and made bare assertions that the “decision and proceding (sic)  are packed by error”.

DISCUSSION

13.In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.The prospect of success of the intended appeal is important: the court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

16.On the merits of the intended appeal, the Applicant has failed to identify any error on the part of the Judge in refusing to grant leave to apply for judicial review.  The Applicant’s allegation that the decision and proceedings contained errors is nothing more than a bare assertion.

17.The Applicant has not shown any errors in the Judge’s decision refusing to grant leave to apply for judicial review, or any viable grounds of appeal in his summons, supporting affirmation, or written submissions.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

18.The application for extension of time to appeal is refused, and the Applicant’s summons of 13 September 2021 is dismissed.

The Applicant, acting in person