Shaiful Ahmed Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 362/2021

[2022] HKCA 350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 362 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1273 OF 2018)

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Before: Hon Kwan VP and Chu JA in Court

Date of Written Submission: 13 September 2021

Date of Judgment: 16 March 2022

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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 16 March 2021, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection[1].

2.On 15 June 2021, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file her appeal ended on 30 March 2021.  On 15 July 2021, DHCJ Lung dismissed the applicant’s summons for extension of time to appeal against the said decision as the applicant was unable to show any reasonable prospect of success in the intended appeal[2].

3.On 30 August 2021, the applicant filed the present summons in the Court of Appeal as a renewed application for extension of time to appeal.

4.The applicant is a Bangladeshi national.  He had a history of coming to Hong Kong, overstaying and being repatriated to his country.  He came to Hong Kong on 9 March 2016.  On 23 May 2016, he surrendered to the Immigration Department and lodged his non-refoulement claim on 27 July 2016.  His claim was made on the basis that if he returned to Bangladesh, he would be harmed or killed by enemies in the Awami League (“AL”) because of his affiliation with the Bangladesh National Party (“BNP”).  Further, he feared that he would be arrested and tortured by the police because he was thought to be responsible for the death of Minto, a local AL member during a fight on 10 April 2014, and that he would be killed by Minto’s brother, who was the vice president of the student wing of the AL in the district.

The Director’s Decision

5.By a Notice of Decision dated 2 August 2017, the Director rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.In the decision, the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there were no substantial grounds for believing that there would be any substantial risk of the applicant being harmed or killed by his enemies if he returned to his country.  Besides, state protection and internal relocation options were available to him.

The Board’s Decision

7.On 11 August 2017, the applicant appealed against the Director’s decision to the Board.  He attended an oral hearing before the Board on 15 December 2017.  On 29 June 2018, the Board dismissed the appeal and affirmed the Director’s decision.

8.In the decision, the Board found that the applicant had fabricated claims in relation to his association with the other AL people and had exaggerated his alleged position in the BNP or the National Jubo Dal, which is the youth wing of the BNP.  The Board concluded that there was no real risk that the applicant would face any of the proscribed forms of harm should he return to Bangladesh.  His claim for non-refoulement protection failed on all applicable grounds.

The intended judicial review

9.On 4 July 2018, the applicant filed a Form 86 and an affidavit for leave to apply for judicial review against the decision of the Board.

10.His grounds for his intended judicial review may be summarised as follows:

(a)  He did not have legal representation for his preparation of his Form 86;

(b)  As the Board dismissed his appeal on the ground of his credibility, the adjudication was a procedurally unfair manoeuvre as the Board failed to meet the greater care and duty owed to a self-represented claimant;

(c)  There was no indication of a reasoned and considered approach for evaluation of the matters;

(d)  The Board was misdirected in its approach as there was not sufficient research and inquiry.

The judge’s decision

11.By a decision dated 16 March 2021 ([2021] HKCFI 616), DHCJ Lung refused to grant leave for the applicant to apply for his intended judicial review and dismissed the leave application, holding at §§14 to 17 that:

“14. His grounds in support of this application are only his opinions without any evidence or specific in support of them. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22]. It is clear that the Board had set out the questions put to the applicant and his answers. It came to its conclusions after considering his answers and proper analysis. The applicant has not been able to specify in what respect the Board’s decisions were illogical or unreasonable. There was no procedural irregularity in the hearing before the Board. I reject all his grounds above.

15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

17. I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

Grounds of intended appeal

12.The applicant did not provide any grounds of appeal in his present summons or supporting affirmation both of 30 August 2021.

13.No discernible grounds of appeal can be found in the applicant’s written submissions dated 13 September 2021 either.  Apart from setting out his claimed risk of being killed and the procedural background, he stated that the Director of Immigration did not see him, and the immigration officer who heard his claim had no “general knowledge” and asked some “unrelated” questions.  No further particulars were provided in this regard.

Analysis and disposition

14.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.

15.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 16 March 2021.  The applicant took out a summons for extension of time to appeal against that order at the court below on 15 June 2021.  She was late for around 2.5 months.  The delay is substantial.

16.At the hearing of his said summons for extension of time, the applicant explained to DHCJ Lung that he did not receive the court’s decision on time.  In his written submissions in support of the present application, the applicant again stated that he did not receive any letter from the court regarding the decision.  He provided no particulars or evidence in support of such assertion.  Such bare assertion cannot justify his delay.

17.As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumati Ferry Co Ltd [2001] 1 HKC 125.

18.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.

19.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 decision of the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

20.In the present case, the applicant did not put forward any reasonably arguable grounds of appeal.  The judge below provided well-founded reasons for his decision.  The applicant failed to identify any errors made by the judge.

21.The applicant’s only complaint is directed at the Director (as opposed to the judge), and this has no merits at all.  The applicant attended a screening interview on 6 March 2017, and the Director’s decision dated 2 August 2017 has set out in detail the applicant’s claim and the reasons for rejecting it.  The applicant’s contention that the officer who heard and determined his claim had no “general knowledge” and asked some “unrelated” questions is without basis and should be rejected.

22.For the above reasons, there is no prospect of success in the applicant’s intended appeal and his application for judicial review.  We refuse to grant extension of time to appeal and dismiss the summons for leave to appeal out of time filed on 30 August 2021.

The Applicant, acting in person

[1] [2021] HKCFI 616.

[2] [2021] HKCFI 1921.

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

[4] 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.

[5] 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.

[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.