ISLAM MAJHARUL v. TORTURE CLAIMS APPEAL BOARD

CAMP 72/2020

[2020] HKCA 825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 72 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1142 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 8 August 2019, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.  The applicant issued a summons on 26 August 2019 for leave to appeal out of time.  His application was heard by the judge on 13 November 2019.  On 19 June 2020, the judge gave his decision refusing to grant leave to appeal out of time as he considered that the applicant was unable to show reasonable prospect of success in the intended appeal[2].

3.  On 30 June 2020, the applicant took out a renewed application in the Court of Appeal for leave to appeal out of time.

4.  The applicant is a national of Bangladesh, 33 years old.  He entered Hong Kong illegally on 16 October 2015 and was arrested by the police on the same day.  He lodged a non-refoulement claim on 21 October 2015.  He claimed that he would be harmed or killed by the members of the Awami League (“AL”) in Natherpetuya Union, Bangladesh due to his refusal to quit the Bangladesh National Party (“BNP”) to join the AL. 

The Director’s decision

5.  By a Notice of Decision dated 8 August 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including the BOR 2 risk[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board. The Board conducted a hearing on 26 April 2018.  After considering the applicant’s evidence, the Board found very significant inconsistencies in his accounts of facts and formed the view that he was not a witness of truth and that he fabricated claims of his membership of the BNP, the alleged fight as well as the alleged false charge against him.  The Board did not accept that he was threatened with harm or that he would face a real risk of any harm should he return to Bangladesh.  Based on the evidence as a whole, the applicant’s case for non-refoulement was not made out and the appeal was dismissed on all applicable grounds on 4 June 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 20 June 2018 to seek leave to apply for judicial review against the decision of the Board.  He put forward the following grounds for his intended challenge:

(1)  the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare for his case;

(2)  there was no interpretation for the hearing bundle and he was confused at the appeal hearing; and

(3)  the Board had relied upon hearsay and outdated materials in relation to the Country of Origin Information, which led to the groundless speculation whether it is safe for him to return to his country of origin.

The judge’s decisions

8.  The judge dismissed the application for want of prosecution as the applicant was absent from the hearing on 12 December 2018[7]. On 24 December 2018, the applicant filed a summons and affirmation in support to seek leave to appeal against the judge’s order.  At the hearing on 8 February 2019, he explained that he was absent at the last hearing because he did not receive the notice of hearing.  The judge was satisfied with his explanation and set aside the order dated 12 December 2018 and ordered that the application for leave to apply for judicial review be restored.

9.  The judge heard the applicant’s restored leave application on 8 February 2019.  The applicant admitted to the judge that he had a fair hearing before the Board and he understood the hearing bundle and the Board’s decision as his friend explained them to him.  He was simply not happy with the Board’s decision that he had to return to Bangladesh.  The judge found that the Board rejected the applicant’s case on the issue of credibility after examination of the evidence and the applicant had no factual basis to support his claim[8]. Further, the grounds of appeal put forward by the applicant were irrelevant to the reasons of the Board’s refusal and without evidence in support[9]. As the applicant failed to show his intended application for judicial review had any reasonable prospect of success, the judge dismissed his application on 8 August 2019.

10.  On 26 August 2019, the applicant sought an extension of time to appeal against the decision of 8 August 2019.  At the hearing on 13 November 2019, the applicant submitted before the judge that there is nothing wrong about the decision but he had a life threat if he were to be refouled.  The judge found that the applicant was unable to show reasonable prospect of success in his intended appeal and dismissed his application on 19 June 2020.

The grounds of appeal in the intended appeal

11.  In the applicant’s written submissions, he stressed that high standards of fairness are required in the determination of a torture claim and submitted that the adjudicator had acted in a procedurally unfair manner without properly assessing his credibility. 

Analysis

12.  In considering whether to extend time to appeal 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.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, 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 8 August 2019.  The applicant took out his summons in the court below on 26 August 2019.  He was late by four days.  He explained in his affirmation that he did not receive the decision on time.  Given the short delay in the present case, the applicant’s explanation can be considered as an acceptable excuse.  The court would still assess whether the applicant can show there is reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[10].

14.  In assessing the merit 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.

15.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Assessment of evidence and Country of Origin Information materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.

16.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  

17.  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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.  The applicant’s intended grounds of appeal are vague and without evidence in support.  He failed to put forward any viable ground to reverse the judge’s decision.  In particular, he had admitted at the hearing on 8 February 2019 that he had a fair hearing before the Board[11] and he also acknowledged at the hearing on 13 November 2019 that there was nothing wrong about the judge’s decision[12]. Therefore, he does not have any viable grounds to reverse the judge’s decision.

19.  For the above reasons, the applicant does not have any prospect of success in the intended appeal.  We therefore dismiss the summons filed on 30 June 2020 for leave to appeal out of time.