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

CAMP 6/2023, [2023] HKCA 636

On An Intended Appeal From [2022] HKCFI 1877 &

[2023] HKCFI 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 6 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 3768 OF 2019)

________________________

________________________

____________________

JUDGMENT

____________________

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

1.On 6 January 2023, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 11 July 2022 (“the Order”) refusing to grant the Applicant leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 13 December 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 December 2018 rejecting the Applicant’s non-refoulement claim.

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

BACKGROUND

4.The Applicant is a national of Bangladesh.  He has a history of illegal entry into Hong Kong.  He arrived in Hong Kong on 28 August 1999 as a visitor and was permitted to remain until 6 September 1999.  His limit of stay was subsequently extended to 17 September 1999.  He overstayed and was arrested by the police on 18 October 1999.  He was later convicted of the offence of breach of conditions of stay, sentenced to 1 month’s imprisonment suspended for 2 years, and removed to Bangladesh on 10 November 1999.

5.The Applicant came to Hong Kong again on 26 June 2002 using a passport bearing another name, and was permitted to remain as a visitor in Hong Kong until 10 July 2002.  He overstayed, and was arrested by the police on 20 May 2003.  He was later convicted on 3 June 2003 of the offence of making a false representation to an Immigration Assistant and sentenced to 8 months’ imprisonment.  A Deportation Order was issued against him on 14 October 2003, and he was deported to Bangladesh on 31 October 2003 after discharge from prison.

6.The Applicant returned to Hong Kong a third time on 1 December 2006 using a passport bearing yet another name, and was permitted to remain as a visitor in Hong Kong until 15 December 2006.  He overstayed, and was arrested by the police on 10 December 2007.  He was subsequently convicted on 28 December 2007 for the offence of making a false representation to an Immigration Assistant, and sentenced to 15 months’ imprisonment.

7.On 5 January 2008, the Applicant lodged a torture claim, which was rejected by the Director on 18 March 2013.  He then lodged an appeal against the Director’s rejection of his torture claim, and raised a non-refoulement claim based on risk of cruel, inhuman or degrading treatment or punishment (“CIDTP”) on 22 March 2013.  His appeal was rejected by the Board, and the Applicant withdrew his CIDTP risk claim, on 29 May 2013.  He was deported to Bangladesh on 24 February 2014.

8.The Applicant surrendered himself to the Immigration Department on 18 March 2016, and made a non-refoulement claim on 5 August 2016 on the basis that if he was refouled to Bangladesh, he would be at risk of harm or death from supporters of the Awami League (“AL”) because, having been a member of AL since 1996, he had wished to leave AL in late 2013 and had been appointed joint secretary of a rival political party known as BNP in 2015.

9.By a Notice of Decision dated 28 December 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

10.The Applicant appealed the Director’s Decision to the Board.  On 13 December 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).

11.On 19 December 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  In the Form 86, the Applicant complained that he was not given a fair opportunity to put forward submissions in an oral hearing before the Board, and he was not invited to make written submissions or reply submissions. He also alleged that the Board relied “on the source of news which is not officially recognized or it is simply hearsay” and also “on some cases which are fairly outdated considering the dramatic changes”.

12.However, he later filed an affirmation on 23 May 2022 requesting to “cancel” his application for judicial review.

THE JUDGE’S DECISION

13.On 11 July 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons ([2022] HKCFI 1877):

“[3] The applicant filed an affirmation on 23 May 2022 to cancel his application.

[4] In accordance with the Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015:

‘It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7^th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5^th ed) at §18.18.1)….’ [67]

[5] The application is therefore dismissed.”

14.On 17 August 2022, the Applicant applied by summons to re-open the application for leave to apply for judicial review on the ground that his problem in Bangladesh had not yet been resolved and his family had been cheated by his enemy.  On 27 September 2022, the Judge refused the Applicant’s application ([2022] HKCFI 2847).

15.On 18 November 2022, the Applicant applied by summons for leave to appeal/extension of time to appeal against the Judge’s order of 27 September 2022.  No ground for the application was given in the Applicant’s affirmation filed on the same date in support of the application. On 5 January 2023, the Judge refused the application on the ground that since the Applicant’s application for leave to apply for judicial review was dismissed upon his own application, there was no reason for the Applicant to appeal against the Order ([2023] HKCFI 66).

THIS APPLICATION

16.By a summons taken out on 6 January 2023, the Applicant applied to the Court of Appeal for leave to appeal the Judge’s order of “5 January 2023”.  In the said summons, the Applicant said that “he did not receive the sealed order, CALL-1 and Judgement within 14 days from 05 January 2023” which had been “lost in post”.  The same was repeated in his affirmation filed on the same date.  It seems clear that the Applicant’s true intention is to lodge an appeal against the Order made on 11 July 2022.

17.Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

18.In his written submissions dated on 20 January 2023, the Applicant made some generic submissions on general principles of law relating to non-refoulement claims, but failed to explain how those principles were relevant or applicable to his case.

DISCUSSION

19.In deciding whether to extend 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.

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

21.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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 judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at §14(6)).

22.In any event, the complaints raised by the Applicant have no merits.

(1)  The Applicant’s explanation for his change of stance regarding the existence of risk of harm or to his life in his home country is a bare allegation without particulars or evidence in support.

(2)  The complaint that he was not given a fair opportunity to put forward his submissions, including written and reply submissions, before the Board is without basis.  He attended an oral hearing of the appeal before the Board on 21 June 2019.  He answered questions put to him by the Adjudicator, and was free to make such submissions as he wished.  Since the Director did not attend the appeal hearing, there was no submissions made by the Director that he needed to reply to.  The fact that he was not invited to make written submissions is neither here nor there.

(3)  In so far as the Applicant complains about the Board’s assessment of his non-refoulement claim, generally, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

23.The Applicant has failed to point to or show any error in the Judge’s decision of 11 July 2022, and has failed to raise any viable ground of appeal against the Order.

24.There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

25.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 6 January 2023 is dismissed.