Hossain Mohammad Billal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CAMP 591/2021

[2022] HKCA 771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 591 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 486 OF 2019)

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Before:  Hon Kwan VP and Chu JA in Court

Date of Written Submissions:  11 January 2022

Date of Judgment:  2 June 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 January 2021, Deputy High Court Judge CP Pang 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 26 October 2021, DHCJ Suffiad dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show that he has any reasonable prospect of success in his intended appeal[2].

3.On 24 December 2021, the applicant filed the present summons with the Court of Appeal to seek leave to appeal against the order of DHCJ Suffiad dated 26 October 2021. 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 of DHCJ Pang dated 28 January 2021.

4.The applicant is a national of Bangladesh. He is 39 years old. He was arrested by the police on 14 April 2015 for illegally remaining in Hong Kong. On 17 April 2015, he sought non-refoulement protection on the basis that he would be ill-treated or even killed by members of the Awami League because of his membership in the Bangladesh Nationalist Party (“BNP”), an opposing political party.

5.By a Notice of Decision dated 23 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 the hearing before the Board on 25 October 2018.

7.The Board held that the applicant did not tell the truth. In particular, he was unable to provide supporting evidence of his membership with the BNP. The Board also found his claim dubious with material inconsistencies. In any event, the Board found there was no evidence that the applicant would be at risk of any harm if he should return to Bangladesh.

The judge’s decision

8.On 20 February 2019, the applicant applied for leave to apply for judicial review against the Board’s decision. He did not provide any grounds for seeking relief. In his supporting affirmation, he alleged inter alia there were interpretation errors by his interpreter and that the Board’s findings were wrong, such as not fully appreciating the situation in Bangladesh. As he did not request an oral hearing, DHCJ Pang considered the application on paper.

9.The judge held that there was no ground in support of the applicant’s application. Besides, the judge did not find any error of law or procedural unfairness of the Board in the consideration and assessment of his claim.

10.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 January 2021.

Grounds of appeal

11.The applicant did not provide any grounds of appeal in his summons. In his supporting affirmation, he deposed simply that he wishes to appeal against the decision of the judge for refusing leave to grant his judicial review. As for his written submissions, he repeats his claim that he would be killed in Bangladesh as the police is against him.

Analysis and disposition

12.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 success of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.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 January 2021. The applicant took out a summons in the court below on 19 March 2021. He was late by about a month.

14.The applicant explained in his supporting affirmation that he did not receive the judgment sent to him by post. However, the court sent the judge’s decision dated 28 January 2021 by post on the day the decision was handed down to his last known address. The court’s documents have not been returned. Under these circumstances, the applicant’s explanation cannot justify the delay.

15.As the applicant’s delay is not insubstantial and excusable, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

16.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.

17.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.

18.The applicant did not provide any ground to refute the Board’s findings or to show that the Board had erred in law, failed to apply high standards of fairness or acted in a procedurally unfair manner. He also could not demonstrate that the judge was wrong in refusing him leave to bring judicial review.

19.For the above reasons, there is no prospect of success, let alone real 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 28 January 2021 and dismiss the summons filed on 24 December 2021.

The Applicant, acting in person