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

CAMP 462/2021

[2022] HKCA 306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 462 OF 2021

(ON APPEAL FROM HCAL 2884 OF 2018)

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BETWEEN

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Before:  Hon Au and Chow JJA in Court

Date of Written Submissions:  1 November 2021

Date of Judgment:  1 March 2022

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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 filed on 18 October 2021, the Applicant applied to this Court for an extension of time to appeal against the decision made by Deputy High Court K W Lung (“the Judge”)  on 30 July 2020 refusing leave to the Applicant to apply for judicial review. On 20 July 2021, the Judge refused to grant the Applicant an extension of time to appeal.

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 came to Hong Kong on 16 February 2007 illegally and was arrested by police on 23 December 2007.  He was later convicted of various offences and sentenced to imprisonment, the longest one being 11 months’ imprisonment on 13 December 2013.  His non-refoulement claim is based on an alleged fear that if refouled, he would be killed by the Bangladesh National Party (“BNP”)  because he was a supporter of the Awami League Party (“AL”)  and he had refused to pay the entire amount of the extortion money as demanded.  He also claimed that he received threats from AL for having no contact with them for a long time.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2020] HKCFI 1747).

4.By a Notice of Decision dated 17 July 2015 and Notice of Further Decision dated 4 April 2018, the Director of Immigration (“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 Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”).  On 7 December 2018, the Board rejected the Applicant’s appeal and confirmed the Director’s Decisions (“the Board’s Decision”).  The Board considered the Applicant’s risk of harm from BNP (§§34-43), AL (§§44-46), and generally (§47). The Board also considered issues of internal relocation (§§48-50)  and availability of state protection (§§51-54).  The Board concluded that the Applicant had failed to establish that he would be at risk of the claimed physical and mental harms, or indeed any harm that would warrant non-refoulement protection.

THE JUDGE’S DECISION

6.On 17 December 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.On 30 July 2020, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §§12-18 of Form CALL-1, the Judge stated as follows:

“12. In this case, the applicant’s legal representative had raised the Director’s Decisions and put forward his reasoning and findings in issue. The Board had taken those points into consideration when making its independent decision of its own. See paragraph 33 of the Board’s Decision.

13. The Board, however, came to the same conclusions as the Director’s.

14. It is obvious that the Board had found facts of the case and concluded that the factual basis of the case did not support his claim.

15. I put the Board’s findings to him and asked him if he had any comments on them. He said that he had no comments.

…

17. I consider that it is not necessary to go into detail of the grounds above. The applicant was legally represented at the screening stage and also at the appeal hearing. Those grounds are either his opinions without evidence in support of them or they are irrelevant to the proceedings in this case. They are invalid grounds.

18. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

THE JUDGE’S EXTENSION DECISION

8.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 or served by the Applicant within the 14-day period.

9.The Applicant filed a summons dated 21 August 2020 applying for extension of time to appeal.  In his affirmation in support of the application, he said that the Court had not considered his situation deeply.  He also said that he could not go back to his own country because his enemy would kill him (see [2021] HKCFI 1915, at §5).

10.Citing Re Adumekwe Rowland Ejike [2019] HKCA 702, the Judge held that the prospect of success of the intended appeal is important and the court will not grant extension of time to appeal for a hopeless appeal to be pursued.

11.The Judge found that the Applicant had not been able to say in what respect the Board had erred its Decision, and considered that the Applicant’s reasons were only opinions without any evidence in support of them.

12.Accordingly, on 20 July 2021, the Judge refused to extend time for the Applicant’s appeal and dismissed his application.

THIS APPLICATION

13.By a summons taken out on 18 October 2021, the Applicant applied to this Court applying for an extension of time to appeal against the decision of the Judge dated 30 July 2020.  In his summons and supporting affirmation filed 18 October 2021, the Applicant stated that he wanted an extension of time to appeal as the High Court refused to extend time.

14.In his written submissions filed on 3 November 2021, the Applicant stated that it would not be safe for him to return to Bangladesh.

DISCUSSION

15.The Applicant’s application below for an extension of time to appeal was not necessary because the month of August 2020, being the Court’s Summer Vacation, should have been excluded in reckoning the time for appeal.  However, the Applicant is now out of time to appeal against the Judge’s decision of 30 July 2020, and requires an extension of time to appeal.  In the special circumstances of this case and in fairness to the Applicant, this Court shall consider the merits of the Applicant’s intended appeal only when considering whether to grant him an extension of time to appeal.

16.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.

17.The Applicant has not shown any errors in the Judge’s decision to refuse to grant leave to apply for judicial review, or viable grounds of appeal in his summons or supporting affirmation or written submissions.

18.There is no reasonable prospect of success in the Applicant’s intended appeal.

DISPOSITION

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

The Applicant, acting in person