Md Ziban v. Torture Claims Appeal Board

CAMP 387/2021

[2022] HKCA 515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 387 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2751 OF 2018)

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Before: Hon Kwan VP and Chow JA in Court

Date of Written Submission: 27 September 2021

Date of Judgment: 22 April 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 6 July 2021, Deputy High Court Judge To 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 claim^[1].

2.On 30 August 2021, Deputy High Court Judge KW Lung dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal^[2].

3.On 13 September 2021, the applicant filed the present summons with the Court of Appeal to seek leave to appeal out of time against the Order made by DHCJ To dated 6 July 2021. 

4.The applicant is a national of Bangladesh.  He is 42 years old.  He arrived in Hong Kong illegally on 15 September 2012 and was arrested by the police on 22 December 2012.  He lodged his non-refoulement claim on 5 February 2013 on the basis he would be harmed or killed by members of the Awami League as he was a participant with the Bangladesh Nationalist Party.

5.By a Notice of Decision dated 13 November 2017, the Director rejected the applicant’s claims on all then applicable grounds including torture risk^[3], BOR 3 risk^[4], BOR 2 risk^[5] and persecution risk^[6]. 

6.The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 30 May 2018 and 25 July 2018.  He was unrepresented before the Board and gave evidence in support of his claims.  The Board did not accept the applicant’s credibility of his alleged claim that he was harmed by those of an opposing political party.  Moreover, the applicant was unable to produce documentary evidence in support of his claims notwithstanding his undertakings given to the Board to do so.  There were also various inconsistencies and shifting of evidence in his testimony and as such, the Board did not find him a credible witness.  His evidence was rejected by the Board and it found no factual basis to support his claim for non-refoulement protection.  Therefore, the Board dismissed his claim on 27 November 2018.

The judge’s decision

7.On 4 December 2018, the applicant applied for leave to apply for judicial review against the decision of the Board.  His grounds in support may be summarised as follows:

(1)  the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the basis that the grounds he raised did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s decision to refuse the appeal was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

8.As he did not request for an oral hearing, DHCJ To considered the application on paper.

9.Upon considering each of the grounds above, the judge held that there was nothing to show the Board had committed any error in the application of law, made irrational findings, or that there was procedural unfairness in coming to its conclusions.  Thus, the judge found that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 6 July 2021.

Grounds of appeal

10.The applicant stated in his summons that he did not receive the relevant court documents as they were lost in the post. However, there was nothing in the court file to show that those documents sent by post were returned undelivered.  In his written submissions, the applicant’s grounds may be summarised as follows:

(1)  High standards of fairness are required on the part of decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing the credibility of the applicant.

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 6 July 2021.  The applicant took out a summons in the court below on 22 July 2021.  He was late for 2 days.  He claimed that he did not receive the judge’s order and judgment within 14 days and only learned about those documents after searching the court file.

13.In view of the short delay, we will consider whether there is any merit in the intended appeal.

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.The applicant’s written submissions do not assist him.  He failed to adduce any evidence to refute the Board’s findings of fact or to provide any particulars to show that the Board failed to apply high standards of fairness or acted in a procedurally unfair manner.  He failed to demonstrate that the judge was wrong in refusing to grant him leave to apply for judicial review as his claims are not reasonably arguable.

17.For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 6 July 2021 and dismiss the summons filed on 13 September 2021.

The Applicant, acting in person

[1]  [2021] HKCFI 1970

[2]  [2021] HKCFI 2296

[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 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).

[5]  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).

[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.