SUJAN MD ABU BAKKAR SIDDIQ v. TORTURE CLAIMS APPEAL BOARD

CAMP 437/2022, [2023] HKCA 527

On appeal from [2022] HKCFI 730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 437 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2098 OF 2018)

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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 11 March 2022, Deputy High Court Judge Bruno Chan 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 12 October 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show any reasonable prospect of success in his intended appeal[2].

3.  On 24 October 2022, the applicant filed the present summons with the Court of Appeal to challenge the decision of the judge on 12 October 2022. In light of the decision in 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 the judge on 11 March 2022.

4.  The applicant is a national of Bangladesh. He is 42 years old. He entered Hong Kong as a visitor on 7 November 2015 but overstayed. He subsequently surrendered to the Immigration Department and raised his non-refoulement claim on 24 November 2015 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 rival Bangladesh Nationalist Party (“BNP”) and for refusing to pay them extortion money.

5.  By a Notice of Decision dated 3 April 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 1 August 2018. Whilst the Board did not take issue with the applicant’s credibility, it did not accept there was a high level of risk of harm from the Awami League due to the low intensity and frequency of past ill-treatment of the applicant. The Board further held there was no official involvement of the state and that police protection was adequate for the applicant. The option of internal relocation was also not unreasonable for the applicant. Therefore, the Board dismissed the applicant’s appeal on 10 September 2018 and affirmed the Director’s decision.

The judge’s decision

7.  On 3 October 2018, the applicant applied for leave to apply for judicial review against the Board’s decision. The grounds of the applicant’s intended challenge contained recitation of various law and principles, which were summarised by the judge as follows:

“(1) That the Board erred in failing to maintain the high standard of fairness by not holding any oral hearing for his appeal so as to allow him an opportunity to put forward his case;

(2) That the Board failed to apply the minimum standard of procedural fairness required in its decision making regarding the Applicant’s claim; and

(3) That the Board failed to take into consideration that the Applicant was not legally represented in his appeal with insufficient legal knowledge which had jeopardized his representation in the appeal process.”

8.  The judge held that no ground was made out to support the applicant’s application. Ground (1) was inapplicable as an oral hearing was in fact held. As for ground (2), no particulars or details were provided by the applicant on how the Board had failed to properly adjudicate his case or to observe the minimum standard of procedural fairness. For ground (3), the judge drew support from Re Zunariyah [2018] HKCA 14 and other cases that as a matter of law a non-refoulement claimant is not entitled to free legal representation at all stages of the proceedings.

9.  Having examined the decisions of the Director and the Board with rigorous examination and anxious scrutiny, the judge did not find any error of law or procedural unfairness in their decisions, including their consideration and assessment of the applicant’s claim. In conclusion, the judge found there is no reasonably arguable basis in the applicant’s intended challenge and dismissed the leave application for judicial review on 11 March 2022.

Grounds of appeal

10.  The applicant did not provide any grounds of appeal in his summons or his supporting affirmation save to state that he did not get documents from the Court. As for his written submissions, he cited various authorities and legal principles without any elaboration of their applicability to his case. His contentions may be summarised as follows:

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

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 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 11 March 2022. The applicant took out a summons in the court below on 23 May 2022. He was late for more than one month, taking into account the closure of the Court Registry between 7 March 2022 and 11 April 2022 due to public health reasons.

13.  The court record showed that the decision of 11 March 2022 was sent to the applicant on the same day to his last reported address without being returned through undelivered post. There was no change in his address as confirmed by the applicant to the court at the hearing on 28 September 2022. There is no valid explanation by the applicant for the substantial delay.

14.  As the applicant’s delay is not 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.

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 grounds are merely bare assertions. Some of the contentions in his submissions were copied verbatim from his application for leave for judicial review, which were already dealt with by the judge in his decision. He also included grounds which are irrelevant, such as the late filing of a notice of appeal in an appeal against a decision of the Director to the Board under section 37ZT of the Immigration Ordinance[7], an event that had not occurred in his case. As for the issue of credibility raised in his submissions, the Board in fact did not take issue with his credibility.

18.  For the above reasons, there is no 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 11 March 2022 and dismiss the summons filed on 24 October 2022.