MD MONJU SHEIKH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 57 /2019

[2019] HKCA 749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 57 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 825 OF 2017)

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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):

Background

1.  On 20 July 2018, Deputy High Court Judge Bruno Chan 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.  On 26 March 2019, the judge refused to grant leave to the applicant to appeal against his said decision out of time as there is no prospect of success in the intended appeal^[2].

3.  The applicant filed a renewed application before the Court of Appeal for leave to appeal against the judge’s decision out of time on 2 April 2019.

4.  Directions were given by the Registrar of Civil Appeals on 3 April 2019 for the applicant to lodge written submissions for his renewed application on or before 23 April 2019.  He has not complied with the directions.

5.  We think it appropriate to exercise our power to determine his renewed application on paper without an oral hearing, pursuant to Order 59 rule 2A(5) of the Rules of the High Court.

6.  The applicant is a national of Bangladesh who entered Hong Kong illegally on 27 January 2013 and was arrested by the police on 29 January 2013.  After he was referred to the Immigration Department, he lodged a non-refoulement claim on 3 March 2014 on the basis that if he were to return to Bangladesh, he would be harmed or killed by a man FS and/or his family for injuring FS in a fight over a land dispute. 

The Director’s decisions

7.  By a Notice of Decision dated 13 November 2015, the Director of Immigration (“the Director”) rejected the applicant’s non‑refoulement claim.  The decision covered torture risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

8.  By a notice of further decision dated 20 December 2016, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk^[6].

The Board’s decision

9.  The applicant attended the hearings of the appeal against the Director’s decisions before the Board on 3 and 13 April 2017.  The Board observed that there were a number of inconsistencies in the applicant’s claim and found that the applicant’s testimony was not reliable.  The Board also considered that state protection and internal relocation alternatives are available in Bangladesh, and that the applicant had not made out a case in respect of any of the 4 grounds mentioned above for his non-refoulement claim.  Thus, the appeal was dismissed by the Board on 1 September 2017.

The intended judicial review

10.  The applicant filed a Form 86 and an affirmation on 31 October 2017 to seek leave to apply for judicial review against the decision of the Board.

The judge’s decision

11.  The applicant was absent at the hearing before the judge.  The judge considered there is nothing amiss arising from the hearing bundle being given to the applicant shortly before the board appeal hearing for reasons explained in §14 of his decision.  The judge found that none of the other grounds are supported by any particulars or specifics or facts from the applicant.  He also held there was no error of law or procedural unfairness in either of the decisions of the Director or of the Board, and they have applied high standards of fairness in their consideration and assessment of the applicant’s claim.  The leave application was refused on 20 July 2018.

The intended appeal against the judge’s decision

12.  The applicant did not state any grounds of appeal in his affirmation which was filed with the present summons.  As mentioned earlier, he also failed to lodge any written submissions in the present application.

13.  He did not provide any grounds of appeal in his previous application for leave to appeal out of time made to the judge.

Analysis and disposition

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account these matters: (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.

15.  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 order.  The judge’s order was made on 20 July 2018.  He only took out a summons in the court below on 18 December 2018 to apply for leave to appeal out of time.  He was late by almost five months.  His delay is substantial. 

16.  In the hearing of the 18 December 2018 summons before the judge on 23 January 2019, the applicant explained that his delay was caused by his change of mind to appeal after he heard that his problems back home were still unresolved. 

17.  The reasons for delay provided by the applicant are inexcusable.  In these circumstances, the court would examine if he has good prospect of success in the intended appeal^[7].

18.  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.

19.  The applicant has failed to demonstrate there is any prospect of success in the intended appeal because he did not put forward any ground for the Court of Appeal to reverse the judge’s decision. 

20.  We therefore dismiss his application for leave to appeal out of time.

21.  As this renewed application is entirely without merit, we make a further order under Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be considered at an oral hearing inter partes.