Humaun Md v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

CAMP 308/2021

[2022] HKCA 388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 308 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2572 OF 2018)

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Before: Hon Kwan VP and Chu JA in Court

Date of Written Submissions: 16 August 2021

Date of Judgment: 18 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 28 May 2020, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.On 2 July 2021, DHCJ Lung dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show any reasonable prospect of success in his intended appeal^[2].

3.On 2 August 2021, the applicant filed the present summons with the Court of Appeal to essentially seek an extension of time to appeal against the decision of the judge.  In light of the decision Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision made by DHCJ Lung dated 28 May 2020.

4.The applicant is a national of Bangladesh.  He is 47 years old.  He had previously made a torture claim on 9 April 2008 which was withdrawn and he requested to return to Bangladesh.  He was deported from Hong Kong on 29 January 2010.  On 14 February 2016, he entered Hong Kong from the Mainland illegally and submitted a non-refoulement claim on 5 March 2016. The basis of the applicant’s claim is that he would be ill-treated or even killed by the Awami League because he had switched to an opposition political party, the Bangladesh National Party.

5.By a Notice of Decision dated 2 November 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim under all applicable grounds including torture risk^[3], BOR 2 risk^[4], BOR 3 risk^[5], and persecution risk^[6].

6.The applicant appealed against the Director’s decision to the Board and attended a hearing before the Board on 23 July 2018.

7.The Board held that the acts which were allegedly carried out by individuals of the opposing party were not supported by evidence that those individuals were acting in an official capacity on behalf of the party itself.  The Board found the evidence of the applicant joining the opposing party to be utterly incapable of belief.  The Board did not accept that he would face genuine and substantial risk of being subjected to ill-treatment should he be returned to Bangladesh.  In any event, the Board found that the alleged acts of the individuals of the opposing party did not amount to torture.  In light of these findings, the Board rejected the applicant’s appeal on 1 November 2018 and confirmed the Director’s decision. 

The judge’s decision

8.On 15 November 2018, the applicant applied for leave to apply for judicial review against the Board’s decision.  In that regard, DHCJ Lung has summarised the applicant’s grounds for his intended judicial review as follows:

“(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;

(4) the Adjudicator was unfair and had not given greater care to a self-represented claimant;

(5) the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future;

(6) the Adjudicator had applied the incorrect standard of proof;

(7) the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

(8) the Adjudicator had relied upon hearsay information and outdated material(s) in relation to COI;

(9) the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

(10) the Adjudicator had not considered USHR 2010, USFR 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Bangladesh” Autumn 2011, which is favourable to his case;

(11) the Adjudicator failed to fulfil his obligation to obtain the requisite documents for his adjudication;

(12) the Adjudicator was wrong in state protection in his country;

(13) the Adjudicator failed to call for psychological and psychiatric reports on the applicant; and

(14) the applicant was not legally represented before the Board, which was in breach of procedural fairness.”

9.The applicant attended the hearing before DHCJ Lung on 24 April 2019.  The judge considered that the applicant’s proposed grounds were either inconsistent, or were opinions without any evidence in support, or just vague assertions against the Board.  In conclusion, the judge found no reasonably arguable basis in the applicant’s intended challenge and dismissed the leave application for judicial review on 28 May 2020.

Intended grounds of appeal

10.The applicant did not provide any substantial grounds of appeal in his summons.  As for his supporting affirmation, it appears that the applicant is seeking an extension of time for his appeal against the decision of DHCJ Lung on 28 May 2020.  In his written submission, the applicant essentially stated that he did not receive the letter from the Court and therefore failed to appeal on time.  However, the applicant has not filed any notice of change of address to notify the court of his updated address.

Analysis and disposition

11.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.

12.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 judge’s order was made on 28 May 2020.  The applicant took out his summons in the court below on 15 June 2020.  The delay was not substantial, however, he has not provided a reasonable explanation for the delay.

13.Even if the delay was insubstantial, 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 (Re Gurung Min Bahadur [2018] HKCA 226 at §10).

14.In assessing the merits 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.

15.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.

16.In the present case, the applicant did not submit any reasonably arguable grounds of appeal.  The judge below provided well-founded reasons for his decision.  The applicant did not put forward any submissions to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.For the above reasons, there is no prospect of success in the applicant’s intended appeal and the intended application for judicial review. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 28 May 2020 and dismiss the summons filed on 2 August 2021.

The Applicant, acting in person

[1] [2020] HKCFI 963

[2] [2021] HKCFI 1763

[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[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.