HOSAIN SHAHIN v. TORTURE CLAIMS APPEAL BOARD

CAMP 464/2021

[2022] HKCA 665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 464 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 823 OF 2019)

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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 1 June 2021, Deputy High Court Judge To 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 2 September 2021, Deputy High Court Judge KW Lung 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 18 October 2021, the applicant filed the present summons with the Court of Appeal to seek leave to appeal against the order of DHCJ To dated 1 June 2021.

4.  The applicant is a national of Bangladesh. He is 21 years old. He entered Hong Kong illegally on 21 December 2015 and was arrested by the police on the same day. On 24 December 2015, he sought non-refoulement protection on the basis that he would be ill-treated or even killed by the Awami League because his father was an active member of an opposing political party, the Bangladesh Nationalist Party (“BNP”).

5.  By a Notice of Decision dated 23 January 2018, 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 14 November 2018. He gave evidence before the Board.

7.  The Board held that despite the fear of the applicant was real, there was no evidence to suggest that he would suffer harm or violence in the city of Mirpur in Bangladesh. This is in fact confirmed by the applicant as he admitted in his testimony to the Board that the assertion stated in his notice of appeal regarding his wife and children being targeted for harm in Mirpur was incorrect, as it was written by his friend for him, and he is not married and has no children[7].

8.  The Board found that notwithstanding the genuine and subjective fear of the applicant, he had no personal political association with the BNP and the risk of harm from the Awami League was considered remote or speculative. He has failed to establish a well-founded fear of persecution. The Board did not find that the applicant would face a real risk of harm if he is refouled to Bangladesh and his appeal was dismissed on 25 February 2019.

The judge’s decision

9.  On 26 March 2019, the applicant applied for leave to apply for judicial review against the Board’s decision. The grounds for his intended judicial review would appear to have been copied from some pro forma document regardless of whether they would apply to his situation. These grounds may be summarised as follows:

(1)  the Board erred in failing to maintain high standard of fairness by not holding an oral hearing[8];

(2)  the Board erred in approaching his appeal by simply trying to see whether it could find fault with the Director’s decision and by not requiring the attendance of the Director at the appeal hearing;

(3)  the Board failed to consider the Country of Origin Information (“COI”) materials[9]; and

(4)  the Board failed to take into account that the applicant was not legally represented and has insufficient legal knowledge and did not inform him that he could complain about this.

10.  The applicant attended the hearing before DHCJ To on 27 May 2021. The judge noted that the Board did hold an oral hearing and had observed a very high standard of fairness throughout. The judge observed that the Board had basically accepted most of the evidence of the applicant but found that he still failed to establish his case for non-refoulement protection under any of the applicable grounds.

11.  As for the complaint of no legal representation after the Director’s decision, the judge referred to the cases of the Court of Appeal which held that the high standard of fairness in non-refoulement cases does not prescribe that a claimant should have an absolute right to free legal representation at all stages of the proceedings[10].

12.  The allegation that the Board did not consider COI is manifestly incorrect.

13.  There is nothing to substantiate the speculation that the Director was excused from attending the hearing so that the Board might accept the Director’s decision wholesale. The applicant did not give particulars as to the alleged breaches of duty of the Board.

14.  In short, the judge did not find any error of law or procedural unfairness in the decision of the Board in the consideration and assessment of the applicant’s claim. As there is no reasonably arguable basis in the applicant’s intended challenge, the judge dismissed the leave application for judicial review on 1 June 2021.

Grounds of appeal

15.  The grounds of appeal in his written submissions are similar to the grounds for the intended judicial review and may be summarised as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

16.  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.

17.  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 1 June 2021. The applicant took out a summons in the court below on 5 August 2021. He was late by over six weeks. The delay is not insubstantial.

18.  The applicant explained in his supporting affirmation that he did not receive the judgment sent to him by post and he only obtained it after searching the court file. According to the court records, the court sent the judge’s decision dated 1 June 2021 by post to the address stated in the applicant’s Form 86 on the day the decision was handed down. The court’s document has not been returned undelivered by the post office. Under these circumstances, the applicant’s explanation cannot justify the substantial delay.

19.  This being the situation, the applicant 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.

20.  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.

21.  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.

22.  In our judgment, the applicant has not advanced any reasonably arguable grounds of appeal. His grounds of appeal are substantially similar as the grounds he raised in the court below, which have been rejected comprehensively by the judge with well-founded reasons. The applicant has not put forward any submissions to demonstrate that the judge had made any errors of law or failed to take account of relevant matters placed before the court or was otherwise plainly wrong.

23.  For the above reasons, there is no prospect of success in the applicant’s intended appeal, let alone real prospect of success. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 1 June 2021 and dismiss the summons filed on 18 October 2021.