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

CAMP 71/2020

[2020] HKCA 816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 71 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 576 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1.  On 9 August 2019, Deputy High Court Judge Josiah Lam (“DHCJ Lam”) 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 22 November 2019 seeking leave to appeal against that decision out of time, as the 14-day period to file his appeal ended on 14 September 2019 after discounting the period of the summer vacation.  His summons was heard on 20 December 2019 by Deputy High Court Judge Bruno Chan (“DHCJ Chan”).  On 18 June 2020, DHCJ Chan refused to grant leave to the applicant to appeal out of time as the delay of more than two months was inexcusable and the applicant failed to show he had any prospect of success in his intended appeal[2].

3.  On 29 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, 35 years old.  He entered Hong Kong illegally on 25 October 2007 and was arrested by the police on the same day.  He raised a torture claim on 10 November 2007 and his claim was rejected by the Director on 24 October 2013.  He then raised a non-refoulement claim on 23 December 2013.  His claim was made on the basis that he would be harmed or killed by terrorists from the Bangladesh National Party (“BNP”) as he had joined the opposition party, namely Chhatra League, the student wing of the Awami League (“AL”) and that he would be killed by the BNP and the Rapid Action Battalion.

The Director’s decisions

5.  As mentioned, the applicant’s torture claim was rejected by the Director on 24 October 2013. 

6.  In the ensuing two-tiered unified screening mechanism, the Director and the Board respectively rejected the applicant’s non-refoulement claim with respect to the remaining three applicable grounds.

7.  By a Notice of Decision dated 29 August 2016, the Director rejected the applicant’s claim on the BOR 3 risk[3] and the persecution risk[4].

8.  By a Notice of Further Decision dated 2 August 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[5].

The Board’s decision

9.  The applicant did not lodge any appeal against the decision concerning his torture claim.  He appealed against the Director’s two decisions on BOR 2 risk, BOR 3 risk and the persecution risk.  The Board conducted a hearing on 23 November 2017.  He confirmed before the Board that his claims in his torture claim are identical to his non-refoulement claim. 

10.  The Board found that the applicant’s evidence was inconsistent and incredible and that he had exaggerated his involvement with the AL if not fabricated his association with the AL for the purpose of his claim.  The Board further found the risk of harm to the applicant at the hands of the BNP should he return to Bangladesh to be very low, as he had told the BNP members that he would not be involved with the AL and he told the Board he would not re-join the AL if he were to return to his home country.  In any event, the Board was satisfied that adequate state protection would be available as the AL is now the ruling party.  The applicant’s claim for non-refoulement protection was not made out and the appeal was dismissed by the Board on 26 March 2018.

The intended judicial review

11.  The applicant filed a Form 86 and an affirmation on 9 April 2018 to seek leave to apply for judicial review against the decision of the Board.  His grounds are as follows:

(1)  The adjudicator unlawfully fettered her discretion, acted in a procedurally unfair manner, rendered unreasonable or irrational decision and failed to meet the greater care and duty owed to a self-represented claimant.

(2)  The appeal bundle was only provided to him a few days before the Board’s hearing and therefore he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation.  He was confused with what had happened at the Board’s hearing.

(3)  The adjudicator relied on outdated cases and information not officially recognized or was simply hearsay.

The decision of DHCJ Lam

12.  On ground (1), the judge found that the applicant had been represented by the Duty Lawyer Service up to the Director’s decision on 29 August 2016 and that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings. The applicant failed to show that his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

13.  On ground (2), as the applicant was assisted by his friend to prepare Form 86 and the affirmation and he was also assisted by qualified interpreters while he was represented by the Duty Lawyer Service and during the screening process before the Director and the Board, the judge considered that the applicant had much exaggerated his language problem.  Regarding his complaint about the hearing bundle, the bundle was served on the applicant within the time prescribed by the Principles, Procedures and Practice Direction of the Torture Claims Appeal Board and it consisted mostly of documents that had been seen or submitted by the applicant during the first-tier screening.  There was no evidence to show that the bundle was difficult or voluminous.  The applicant also failed to show he needed more time to prepare for his appeal nor did he ask for adjournment of the hearing.  Lastly, the applicant said he answered all the questions honestly during the hearing which reflected that he knew what was asked and how to answer and he was not confused.

14.  Ground (3) failed as there was no evidence to substantiate the complaint.

15.  The judge was satisfied that the Board had proper basis for its findings and decision, which were not Wednesbury unreasonable.  The applicant has no realistic prospect of success in the judicial review so the judge refused to grant leave to apply for judicial review.

16.  On 22 November 2019, the applicant sought an extension of time to appeal against the decision of 9 August 2019.  DHCJ Chan refused his application on 18 June 2020.

The grounds of the intended appeal

17.  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

18.  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.

19.  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 refusal.  The judge’s order was made on 9 August 2019.  The applicant took out his summons on 22 November 2019 and was late for more than two months, excluding the month of August 2019 for the summer vacation.  The delay is substantial.

20.  The applicant submitted before DHCJ Chan that he had never received the decision in his mail box and that it was only on 19 November 2019 that he found the letter containing the decision lying on the floor at the entrance of his flat.  He suspected that someone had taken his letter by mistake and later just dropped it on the floor as there were many other tenants in his flat[6]. However, in the present application, he stated in his summons and affirmation that the order and judgment were lost in the post and he could only get them after searching the court file.  The applicant’s explanations are inconsistent and therefore unacceptable.  As his delay is substantial and inexcusable, he must show a real prospect of success on the merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

21.  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.

22.  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.

23.  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.

24.  The applicant’s grounds of appeal are lacking in particulars and evidence in support.  He also admitted at the hearing before DHCJ Chan on 20 December 2019 that he was unable to find any mistake or error in the decision[7].

25.  In the decision of DHCJ Lam dated 9 August 2019, the judge had reviewed the decision of the Board carefully and explained his reasons for refusing leave in detail.  His decision is well founded.

26.  For the above reasons, the applicant does not have any prospect of success in the intended appeal.  We therefore dismiss his summons filed on 29 June 2020 for leave to appeal out of time.