SHEIKH MOHAMMAD MITHU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 191/2021, [2023] HKCA 872

On Appeal From [2020] HKCFI 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 191 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2367 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 19 August 2020 refusing to grant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 17 April 2018.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 19 June 2017 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh born in 1985.  He was arrested by the police on 1 September 2013 for being an illegal immigrant in Hong Kong.  He lodged a non-refoulement claim on 4 September 2013 on the basis that he would be harmed or killed by an individual named Nur Hossain, who was a leader of the Awami League, due to political differences as the applicant belonged to an opposing party, the Bangladesh Nationalist Party.   The details of his claim are set out in paragraphs 26 to 35 of the Board’s decision.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]  By a notice of decision dated 19 June 2017, the Director rejected the claim. 

4.  The applicant appealed to the Board against the Director’s decision, and an oral hearing was held accordingly on 29 March 2018.  The Board had attempted to ask questions of the applicant but he refused to answer.  He adopted and confirmed the information and documents he provided to the Director and said he had nothing and no further document to add.  The Board told the applicant that his obligation was to provide the Board with credible evidence to support his claims for protection, that the Board wished to clarify certain matters in the information the applicant had provided and that the issue of internal relocation would arise.  His response to the Board was essentially that he did not wish to add anything or answer any questions and he would accept whatever decision the Board made.  To ensure the applicant had sufficient time to reconsider his position, the Board took a short break and suggested to the applicant that it would be better for his case if the Board’s questions were answered.  The applicant again refused.  Accordingly the Board closed the hearing and informed him that a written decision would  be provided in due course.

5.  The Board then proceeded to determine the applicant’s appeal based on the documents submitted.  It found various inconsistencies in the applicant’s claim and listed out its concerns at paragraphs 39 to 43 of its decision.  These included examples of conflicting information from the applicant’s interviews with the Immigration Department, the non-refoulement claim form and country of origin information obtained by the Board.  The applicant also submitted certain new “case papers” to the Director after his interviews with the Immigration Department.  The Board found that the applicant’s claims to the Director lacked sufficient detail and were unconvincing as to his involvement with the Bangladesh Nationalist Party.  Without any further explanation from the applicant’s oral evidence, the Board was not satisfied the applicant had established any of the facts he had asserted.  As a result, in its written decision issued on 17 April 2018 the Board dismissed the appeal and affirmed the decision of the Director. 

The Judge’s decisions in the court below

6.  On 29 October 2018, the applicant filed a Form 86 out of time to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision, without specifying any grounds in that form.  In the accompanying affirmation, the applicant annexed the decisions of the Director and the Board, and repeated his background and fear of being refouled to Bangladesh.

7.  Before his application was heard, however, the applicant filed an affirmation on 3 August 2020 requesting in essence that his application be withdrawn as his problems in Bangladesh were solved.  The Judge thus held that as the applicant’s claim for non-refoulement protection was no longer extant, the application ought to be dismissed rather than withdrawn.  Hence, the Judge by way of a Form CALL-1 dated 19 August 2020, dismissed the applicant’s application.  

8.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal against Judge’s decision.

9.  The applicant did not appeal within time.  Instead, on 30 October 2020, the applicant filed an affirmation and summons for extension of time to appeal, seeking to basically reinstate his application for leave to apply for judicial review.

10.  The judge decided to hold a hearing of the applicant’s summons.  The applicant however failed to attend the hearing on 24 March 2021 and therefore, the Judge considered the application on the basis of the documents alone.  By his decision on 22 April 2021,[5] the Judge dismissed the summons on the ground that there was no prospect of success in the intended appeal.  The reasons were set out at [3] – [7] of the decision as follows:

“ 3. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4. In the applicant’s case, a delay of almost 2 months must be considered as substantial or significant, for which he did not provide any explanation in his summons or supporting affirmation in which he just stated that he does not want to return to his home country.

5. The court record shows that the decision was sent on the same day to the applicant’s last reported address which is the same as stated in his present application and which has never been returned through undelivered post, while a change of mind over the proceedings can never be accepted as an excuse for procedural breaches. In the circumstances I am not satisfied that the applicant has any good reason for his delay.

6. More importantly, nor did he put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or in his affirmation, and that he also failed to attend the hearing of his summons without any explanation. Given the fact that he had earlier requested to withdraw his application as his problem at home has been resolved, and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.

7. In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.”

The renewed application before this Court

11.  By the present summons filed on 25 May 2021, the applicant made an application to this court for extension of time for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  In the summons and the accompanying affirmation, the applicant did not provide any grounds of his intended appeal.

12.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 29 June 2021. 

13.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

14.  The delay of a month and a half (excluding August 2020 which was the court vacation) in this case is substantial.   The applicant did not provide any explanation for it. In the circumstances, an extension of time should not be granted unless there are real prospects of success in the intended appeal.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.   

15.  The applicant’s application out of time for leave to apply for judicial review was dismissed pursuant to the applicant’s own request to withdraw it. There is nothing erroneous in the Judge’s decision to accede to the applicant’s own request for terminating his case. 

16.  As to the decision in Re Masud MD[6] regarding the high standard of fairness required of the Board, in circumstances when the applicant refuses to answer questions at the Board’s hearing, the Court of Appeal in the decision Buniag Renante Lulu v Torture Claims Appeal Board and Director of Immigration[7] at [25] discussed the decision of Re Masud MD (supra) and provided further clarification as to the requirements of fairness when an applicant refuses to give evidence as follows:-

“ 25. The Court of Appeal in Re Masud MD did not lay down a rule that a ‘warning’ must be given whenever applicants refuse to give evidence or to answer questions from the Board, that their case will bound to fail unless they continue to participate in the oral hearing. Rather, the Court of Appeal held that the Board would have to consider as a matter of fairness and on the facts before them, that in cases where the applicant’s refusal to give evidence would be fatal to his or her claim, the applicant should be given notice that some aspects of his or her evidence would not be accepted or his or her credibility in that regard would be impeached. It may also be necessary in some cases to draw the applicant’s attention to the perceived inconsistencies, gaps, lack of particulars in the applicant’s asserted facts based on an assessment on the written materials before the Board, and to provide an opportunity to the applicant to respond if he or she wishes to.”

17.  It is trite law that the standard of fairness, which  cannot be exhaustively defined in the first place, depends on the circumstances of the case.  In the present case, the Board as set out at [12] and [36] of its decision had reminded the applicant on several occasions of the need to answer questions.  The Board even gave the applicant a short recess to reconsider his position.  In the circumstances, the applicant had been given all reasonable opportunity to make representations to address the concerns which are determinative in the Board’s decision.  It was the applicant’s own decision not to take up the opportunity.  

18.  On that basis and upon considering the materials before it, the Board concluded that the applicant’s evidence was not credible nor reliable.  The Board was not satisfied he would be subject to any risk of harm if he returned to his country.   This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it gave in its decision.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish any such public law grounds.

19.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in refusing to extend time and to grant leave for judicial review.  We have considered the materials available and we concur with the Judge’s view that there is no merit in the application for leave to apply for judicial review. 

20.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.

[1]  This refers to the 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).

[2]  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.

[3]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5]  [2021] HKCFI 977

[6]  [2021] HKCA 1449

[7]  [2022] HKCA 836