Sakil Mohammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 571/2021

[2022] HKCA 706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 571 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2886 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Written Submissions:  3 January 2022

Date of Judgment:  6 June 2022

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.This is the Applicant’s application for an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 27 July 2020 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“the Board”) dated 21 November 2018, which dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 February 2017.

2.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

3.The Applicant is a national of Bangladesh. He was born on 8 August 1988 and is now 33 years of age. He came to Hong Kong illegally on 9 March 2016 and was arrested by the Police on the same day. He lodged his non‑refoulement claim by a written representation dated 12 March 2016, alleging that if refouled, he would be harmed or killed by his uncle over a land dispute, and/or members of the Awami League because he was a member of the rival Bangladesh Nationalist Party. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2020] HKCFI 1701).

4.By a Notice of Decision dated 28 February 2017, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

5.On 8 March 2017, the Applicant appealed the Director’s decision to the Board.

6.The Applicant attended hearings before the Board on 20 June 2018 and 24 September 2018, during which he spoke through a Bengali interpreter. At the hearing, the Board asked the Applicant a series of detailed and open questions, and found that the level of vagueness and incoherence in the Applicant’s account was significant and its inconsistency with his previous statement was marked. The Applicant could provide no explanation for those difficulties. The Board considered the Applicant’s account to be unreliable, and no credence whatsoever could be attached to it (see Board’s Decision at §25).

7.The Board was provided with documents including two letters of support allegedly from the Bangladesh Nationalist Party. The Applicant could not provide any information on how he obtained the two letters from the Bangladesh Nationalist Party. The only explanation from him was that an un-named and un-described friend obtained the documents for him (see Board’s Decision at §§32 and 34). Overall, the Board concluded that no credence whatsoever could be attached to any of his claims.

8.On 21 November 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”).

JUDGE’S DECISION

9.On 17 December 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

10.On 27 July 2020, the Judge refused to grant leave to the Applicant to apply for judicial review. At §§14-16 of the Form CALL-1, the Judge stated as follows:

“14. It is quite clear that the Board had examined his evidence by reference to his statement given to the Director and his oral evidence at the hearing, giving him ample opportunity of clarifying the issues for the Board.

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.”

11.On 28 October 2021, the Judge dismissed the Applicant’s summons of 22 October 2020 seeking an extension of time to appeal against his earlier order of 27 July 2020.

THIS APPLICATION

12.By a summons taken out on 20 December 2021, the Applicant applied for an extension of time to appeal against the order of the Judge dated 27 July 2020. In his supporting affirmation filed on the same date, the Applicant merely repeated his request for an extension of time.

13.In his 2-page written submissions dated 3 January 2022, the Applicant claimed that his life would be in danger should he be refouled back to Bangladesh.

DISCUSSION

14.In deciding whether to grant an extension of time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

15.The prospect of success of an intended appeal is important. The court will not grant extension of time for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

16.The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

17.The Applicant has not pointed to any error in the Judge’s decision dated 27 July 2020, or raised any viable ground of appeal against the Judge’s decision. There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

18.The application for extension of time to appeal is refused, and the Applicant’s summons of 20 December 2021 is dismissed.

The Applicant, acting in person