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

CAMP 73/2020

[2020] HKCA 880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 73 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1602 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 25 October 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 28 November 2019 seeking leave to advance a new ground of appeal and leave to appeal against that decision out of time, as the 14-day period to file his appeal ended on 8 November 2019.  A hearing of the application was conducted on 22 January 2020.  On 19 June 2020, the judge handed down his decision refusing to grant leave to the applicant to appeal out of time as the applicant failed to show that he has a reasonable prospect of success in his 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 and is 35 years old.  He arrived in Hong Kong illegally on 5 May 2013 and was arrested by the police on 12 September 2013.  He raised a non-refoulement claim on 14 September 2013 on the basis that he would be harmed or killed by members of the Bangladesh Chhatra League, a student wing of Bangladesh Awami League in his locality because he was an active worker of the Jamaat-e-Islami Party.   

The Director’s decisions

5.  By a Notice of Decision dated 13 November 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 3 risk[3], torture risk[4] and persecution risk[5].

6.  By a Notice of Further Decision dated 20 July 2017, the Director rejected the applicant’s claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk[6].

The Board’s decision

7.  The applicant appealed against the Director’s decisions to the Board.  The Board conducted a hearing on 19 December 2017.

8.  The Board found the applicant an unreliable witness and noted that he produced no evidence to support his account of events.  The Board decided that the applicant failed to substantiate his claim and dismissed his appeal on 1 August 2018.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 10 August 2018 to seek leave to apply for judicial review against the decision the Board.  He put forward the following grounds for judicial review:

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

(2)  the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3)  he was confused at the appeal hearing; 

(4)  it is unreasonable for the Board not to believe his evidence; and

(5)  the Board significantly relied on source of news which is not officially recognized or is simply hearsay or outdated which led to the groundless speculation.

The judge’s decision

10.  The applicant appeared at the hearing before the judge on 3 May 2019.  The judge held that the applicant does not have a reasonable chance of success in his intended judicial review as his grounds are inconsistent with his oral submissions in court or are not supported by evidence.  The judge therefore refused to grant leave to the applicant on 25 October 2019.

Grounds of 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 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.

13.  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 25 October 2019.  The applicant took out a summons on 28 November 2019.  He was late by nearly three weeks.  The delay is substantial.  

14.  The applicant explained that he had not received the decision.  The decision sent to him was indeed returned by post for incomplete address.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). 

15.  Even if the court were to accept his explanation for the delay,  the court would still assess whether he can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[7].

16.  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.

17.  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.

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’s grounds are just bare assertion without elaboration and evidence in support.  In fact, he admitted at the hearing before the judge on 3 May 2019 that he had a fair interview before the immigration officer and a fair hearing before the Board.  He also confirmed he understood the Board’s decision and stated that he had no comment on it[8]. He failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in the decision of 25 October 2019.

20.  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.

[1]  [2019] HKCFI 2632

[2]  [2020] HKCFI 1171

[3]  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.

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

[5]  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.

[6]  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.

[7]  Re Gurung Min Bahadur [2018] HKCA 226 at §10

[8]  [2019] HKCFI 2632 at §§20-21