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

CAMP 117 /2020

[2021] HKCA 213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 117 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1251 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 23 December 2019, 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.  The applicant filed a summons on 10 January 2020 seeking extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 6 January 2020.  The application was heard by the judge on 11 June 2020 and it was dismissed on 28 July 2020[2].

3.  On 4 August 2020, the applicant took out this renewed application in the Court of Appeal for extension of time to appeal against the judge's decision of 23 December 2019.

4.  The applicant is a national of Bangladesh.  He is 55 years old.  He entered Hong Kong illegally on 4 January 2016 and raised a non‑refoulement claim on 17 August 2016.  His claim was made on the basis that he would be harmed or killed by one of his brothers due to some monetary dispute if he were to be returned to Bangladesh.

The Director’s decision

5.  By a Notice of Decision dated 9 August 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 2 risk[3], BOR 3 risk[4], torture risk[5] and persecution risk[6].  The Director also rejected the applicant’s intended grounds under Articles 5, 14 and 22 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383, as they are not considered as non-derogable rights and do not give rise to non‑refoulement obligation.[7]

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board.  The hearing of the appeal was conducted before the Board on 5 February 2018. The Board considered that the applicant was not targeted by the state or its agents.  The element of official capacity cannot be shown.  The Board assessed that effective state protection is available and it is safe and reasonable for the applicant to relocate to other places in Bangladesh.  Thus, the Board held that the applicant was unable to establish a real risk pertinent to any of the applicable grounds and dismissed the applicant’s appeal on 9 April 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 3 May 2018 to seek leave to apply for judicial review against the decision the Board.  He put forward the following grounds in his affirmation:

(1)  the Board misinterpreted the law and facts in rejecting his claim resulting in total failure of justice;

(2)  the Board committed an error of law resulting in an error in its decision in rejecting his claim;

(3)  the Board erred in its decision in failing to consider his claim fairly and properly resulting in failure of equity and justice;

(4)  the Board’s decision is bad in law as well as in facts resulting in failure of justice; and

(5)  the Board misread and misunderstood the applicant’s claim and arbitrarily passed judgment on his claim resulting in failure of equity and justice.

The judge’s decision

8.  The applicant attended the hearing before DHCJ Bruno Chan on 8 October 2019.  The judge held that the applicant’s grounds are not reasonably arguable as they are just broad and vague assertions without any particulars, specifics or elaborations.  The judge considered that there is no error of law or procedural unfairness in the decisions of the Director and the Board and there is also no evidence of any failure to adhere to high standards of fairness.  Therefore, the application was dismissed by the judge on 23 December 2019.

Grounds of intended appeal

9.  The applicant stated his intended grounds of appeal in his written submissions which may be summarized as follows:

(1)  it was impossible for the applicant to make his claim clear to the officers as the quality of the interpreter provided by the Immigration Department is poor;

(2)  the Director and the Board did not visit Bangladesh so it is not fair.  If they had gone to Bangladesh, they could realise his problem and the real situation there;

(3)  the judge only followed the Board’s decision.

Analysis

10.  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.

11.  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 23 December 2019.  The applicant took out a summons at the court below on 10 January 2020.  He was late by four days.  

12.  The applicant explained that his application was late as he only received the judgment on 8 January 2020.  Given the short delay in the present case, the applicant’s explanation may be considered as acceptable.  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[8].

13.  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.

14.  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.

15.  The applicant’s complaint against the judge is unmeritorious.  In particular, the applicant failed to provide any evidence to impugn the decisions of the Director and the Board in finding that the risk of harm is a localised one and reasonable relocation is available to the applicant in Bangladesh.

16.  The rest of the applicant’s grounds were not raised in his previous leave application.  The Court of Appeal would not entertain such new grounds as an appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below[9].

17.  In this application, the applicant failed to demonstrate 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.  He does not have any prospect of success in the intended appeal.

18.  We therefore dismiss the summons filed on 4 August 2020 and refuse to grant extension of time to appeal.

[1] [2019] HKCFI 2668

[2] [2020] HKCFI 1610

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7] Notice of Decision §§31-34

[8] Re Gurung Min Bahadur [2018] HKCA 226 §10

[9] Re Qadir Sher [2018] HKCA 160 at §11