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

CAMP 220/2021

[2022] HKCA 823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 220 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2268 OF 2018)

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Before:  Hon Kwan Ag CJHC and Barma JA in Court

Date of Written Submission:  25 January 2022

Date of Judgment:  17 June 2022

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Barma JA) handed down on 31 December 2021 ([2021] HKCA 1986). The Court of Appeal refused to grant extension of time for the applicant to appeal against the decision of Deputy High Court Judge To dated 21 April 2021 ([2021] HKCFI 1075) dismissing the application for leave to apply for judicial review concerning his non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 11 January 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 25 January 2022. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.The applicant is a national of Bangladesh. He last entered Hong Kong on 8 August 2015 as a visitor. He did not leave when his visa expired. He surrendered to the Immigration Department on 24 August 2015 and lodged a non-refoulement claim on 5 May 2016. His claim was made on the basis that, if refouled, he would be harmed or killed by a member of parliament of the Awami League.

4.He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 10 June 2021[1].

5.The applicant renewed his application to the Court of Appeal for extension of time to appeal on 17 June 2021. The application was dismissed by the Court of Appeal on 31 December 2021 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.The grounds of appeal stated in the Notice of Motion filed on 11 January 2022 may be summarised as follows:

(1)  The applicant does not agree with the Court of Appeal’s decision because the court did not consider his summons properly. The court just relied on simple hearsay and the decision is unfair.

(2)  The decision made him unhappy and disappointed.

(3)  The judge may not have analysed his appeal and did not scrutinize his problem in his home country.

(4)  The applicant will be killed by his enemy if he returns to his home country.

7.The further contentions stated in his written submissions may be summarised as follows:

(1)  The judge was wrong as a matter of law for not applying the principle of irrationality to the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”).

(2)  The judge reviewed the matter lightly whereas high standards of fairness are required in the determination of torture claims.

(3)  The judge was wrong as a matter of law for not applying the principle of procedural unfairness to the decisions of the Director and the Board whereby they were required to give reasons to justify their decisions.

(4)  The applicant’s problems are very severe in his home country and he has submitted all the proofs of his torture claim but the judge did not apply greater care in considering the evidence.

(5)  The judge may not have analysed the applicant’s claims properly. The judge may not have received what had been refused by the Board and the Director.

(6)  The judge’s decision to reject the appeal was unreasonable.

(7)  The Board failed to give sufficient chance for the applicant to arrange for relevant evidence for his non-refoulement claim and his appeal.

(8)  The applicant will face hardship if he returns to his home country. The Board significantly relied on source of news which is not officially recognized or is simply hearsay.

(9)  The Board failed to evaluate and make a finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in Bangladesh.

(10)  The Board failed to assess whether state protection exists in Bangladesh and misdirected itself as to the extended meaning of state protection.

(11)  There is no assurance he can get protection from the authorities of the state.

Analysis and disposition

8.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

9.The applicant’s grounds and submissions are just bare assertions without evidence in support. In particular, he has not identified what issues in his claims have not been analysed by the court properly and he has not provided sufficient elaboration or evidence to show how the Court of Appeal’s decision failed to apply the relevant principles, what hearsay evidence had the court relied on and why the decision is unfair. While complaining that he was not given sufficient chance to arrange the relevant evidence previously, he has still failed to adduce sufficient evidence to the court in his appeal and his present application to substantiate his case after all these years.

10.Furthermore, he has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11.For the above reasons, we refuse to exercise our discretion to grant leave to appeal to the Court of Final Appeal. We dismiss the Notice of Motion filed on 11 January 2022.

The Applicant, acting in person