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

CAMP 601/2021

[2022] HKCA 770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 601 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2818 OF 2018)

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Before:  Hon Kwan VP and Chu JA in Court

Date of Written Submissions:  13 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 26 August 2021, Deputy High Court Judge KW 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 16 December 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 that he has any reasonable prospect of success in his intended appeal[2].

3.On 30 December 2021, the applicant filed the present summons with the Court of Appeal to seek leave to appeal against the order of the judge dated 16 December 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 Lung dated 26 August 2021.

4.The applicant is a national of Bangladesh. He is 34 years old. He entered Hong Kong illegally on 3 January 2015 and was arrested by the police on the same day. On 10 January 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 political affiliation with 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 Notice of Decision to the Board and attended the hearing before the Board on 14 June 2018.

7.The Board held that the applicant did not tell the truth in relation to his claim of being a BNP supporter. In essence, the Board found that the applicant was and is not a member of the BNP and that he left Bangladesh not for the reasons as alleged. Therefore, the Board found that there was no evidence that the applicant would be at risk of any harm if he should return to Bangladesh. In the circumstances, the Board dismissed his appeal on 22 November 2018.

The judge’s decision

8.On 10 December 2018, the applicant applied for leave to apply for judicial review against the Board’s decision. He did not provide any grounds for seeking relief and in his supporting affirmation, he simply annexed the decisions of the Board and the Director. As he did not request an oral hearing, DHCJ Lung 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 the applicant’s claim. In conclusion, the judge found no reasonably arguable basis in the applicant’s intended challenge and dismissed the leave application for judicial review on 26 August 2021.

Grounds of appeal

10.The applicant did not provide any grounds of appeal in his summons. In his supporting affirmation, he simply deposed that he wishes to appeal against the decision of the judge for refusing leave to judicial review. His written submissions appear to be copied from some proforma document generally seen in these proceedings, and contain various bare allegations without any elaboration. The grounds of appeal that could be gathered from these documents may be summarised as follows:

(1)  High standards of fairness are required on the part of the 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 application without properly assessing his credibility.

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 success 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 26 August 2021. The applicant took out a summons in the court below on 11 November 2021. He was late by over two months and no reasonable explanation of the delay was provided.

13.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 26 August 2021 by post on the day the decision was handed down to the last known address of the applicant. The court’s documents have not been returned. Under these circumstances, the applicant’s explanation cannot justify the delay.

14.As the applicant’s delay is not insubstantial and inexcusable, 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.

15.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.

16.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.

17.The applicant’s written submissions do not assist him as no elaboration was provided of the bare assertions. He failed to adduce any evidence to refute the Board’s findings or to provide any particulars to show that the Board had failed to apply high standards of fairness or acted in a procedurally unfair manner. Furthermore, he failed to demonstrate that the judge was wrong in refusing him leave to bring judicial review.

18.For the above reasons, there is no prospect of success in the applicant’s intended appeal, let alone real prospect of success. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 26 August 2021 and dismiss the summons filed on 30 December 2021.

The Applicant, acting in person