MAMUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 314 /2021

[2022] HKCA 323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 314 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2392 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  On 16 July 2020, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 2 August 2021, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as there is no reasonable prospect of success in the intended appeal[2]. The file was misplaced and the application was not dealt with within the usual time.

3.  On 3 August 2021, the applicant filed the present summons with the Court of Appeal seeking to set aside an order dated 16 July 2020 and for leave to file a notice of appeal. This application should be treated as a renewed application for leave to appeal out of time against the decision dated 16 July 2020 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of Bangladesh. He is 40 years old. He entered Hong Kong illegally on 25 November 2013 and was arrested by the police on the same day.

5.  The applicant lodged a non-refoulement claim on 27 November 2013. His claim was made on the basis that he will be harmed or killed by people connected with the Awami League (“AL”), in particular, by followers of a man named Ashraf, who was the chairman of the North Medini Mandal union and president of the Louhajong branch of the AL at police station level, because the applicant was an office-holder in the student wing of the Bangladesh Nationalist Party, and had money disputes with the people of AL.

The Director’s decisions

6.  By a Notice of Decision dated 23 December 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

7.  By a Notice of Further Decision dated 19 June 2017, the Director rejected the applicant’s claim on BOR 2 risk[6].

The Board’s decision

8.  The applicant appealed against the Director’s decisions to the Board. He attended the hearing before the Board on 6 February 2018. The Board concluded that the applicant was not a reliable witness in that he was making up his story as he went along. The Board also found from the evidence, even if true, that the incidents were the result of a business dispute rather than the applicant’s political allegiance or position. As to state protection, the Country of Original Information indicated that the police had acted even against members of the ruling party if evidence was presented to them. Relocation was also an option open to the applicant. Therefore, the Board dismissed the appeal on 19 October 2018.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 29 October 2018 for leave to apply for judicial review against the decisions of the Director and the Board, but did not set out any reasons in support of his application other than saying that the Director (it would appear he meant the adjudicator) was unreasonable in that he failed to consider all matters raised in his claim and failed to give adequate reasons for his decision.

The judge’s decisions

10.  The judge referred to the case of Re Ali Haider [2018] HKCA 222 which stressed that the immigration officer and the adjudicator are the fact finders. Since the Board did not accept the applicant’s evidence on the facts of his case, he simply has no factual basis in support. The judge was of the view that the Board’s decision clearly set out the basis of the assessment and the reasons for the Board’s findings, and there was nothing amiss in the assessment of the facts by the Board. The judge therefore dismissed the application for leave to apply for judicial review in his decision of 16 July 2020.

11.  The applicant’s application for extension of time to appeal against the decision of 16 July 2020 was dealt with on paper by the judge, who found that the applicant failed to show any reasonable prospect of success in his intended appeal. The judge therefore refused to grant extension of time and dismissed the leave application on 2 August 2021.

Grounds of intended appeal

12.  The applicant stated in his summons and affirmation that his documents had been lost in the post, and that he only received the sealed order and the judge’s decision of 16 July 2020 by the time the deadline to appeal within 14 days of the judgment had passed. He claimed that he could only search for those documents after searching the Court file.

13.  In his written submissions dated 17 August 2021, he submitted that the adjudicator did not adhere to the high standards of fairness required in the determination of a torture claim, that the adjudicator acted in a procedurally unfair manner without properly assessing his credibility, and that the decision of the Board was Wednesbury unreasonable.

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: (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, 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 order was made on 16 July 2020. The applicant took out a summons for leave to appeal out of time at the court below on 4 August 2020. He was late by 5 days.

16.  The applicant also explained in his supporting affirmation filed with the court below that he was late because he was not aware of the time limit for appeal.

17.  Even if this court is minded to accept his explanations in view of the short delay in the present case, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[7].

18.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

19.  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. 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.

20.  In the present application, the applicant does not have any reasonably arguable grounds to challenge the decision of the judge. His contentions that the judge failed to take into account all relevant circumstances and made an error in the judgment are without basis. The judge has considered the applicant’s complaints against the Director and the Board, has found nothing amiss in the assessment of the facts by the adjudicator, and provided detailed explanation for rejecting the leave application in his decision dated 16 July 2020.

21.  For all the above reasons, the applicant failed to show that he has any prospect of success in his intended appeal. We therefore refuse to extend time to appeal against the judge’s decision of 16 July 2020 and dismiss the summons filed on 3 August 2021.