|
CAMP 202/2024, [2025] HKCA 166
On An Intended Appeal From [2024] HKCFI 1176 &
[2024] HKCFI 2317
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 202 OF 2024
(ON AN INTENDED APPEAL FROM HCAL NO 607 OF 2019)
________________________
|
BETWEEN
|
| |
MR SUMON alias
MOHAMMAD RAHMAN SUMON |
Applicant |
| |
and |
|
| |
TORTURE CLAIMS APPEAL BOARD |
Putative |
| |
|
Respondent |
| |
and |
|
| |
DIRECTOR OF IMMIGRATION |
Putative |
| |
|
Interested Party |
________________________
| Before: |
Hon G Lam and Chow JJA in Court |
| Date of Written Submissions: |
4 November 2024 |
| Date of Judgment: |
26 February 2025 |
_______________
J U D G M E N T
_______________
Hon Chow JA (giving the Judgment of the Court):
1. On 21 October 2024, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 12 September 2024 refusing to grant him an extension of time to appeal against the Judge’s earlier order dated 30 April 2024 (“the Order”) refusing to grant leave to apply for judicial review.
2. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 15 February 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 November 2017.
3. Having considered the documents before us, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
4. The Applicant is a national of Bangladesh. He last entered Hong Kong on 17 January 2002 as a visitor. He overstayed illegally and was arrested by the police on 5 July 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim[1] on 13 July 2007, which was rejected by the Director on 27 April 2012. His petition against the refusal decision of his torture claim was dismissed on 7 June 2012. On 9 June 2015, he lodged a non-refoulement claim, which was assessed on all applicable grounds other than the risk of torture. The Applicant claimed that, if refouled, he would be harmed or killed by the family members of the late Mr Shaidul Hasan Bappi (“Bappi”) because they suspected the Applicant’s involvement in a bomb explosion incident which killed Bappi. The Applicant also alleged that the family members of Bappi were members of the Awami League (“AL”), while he was a supporter of the Bangladesh Nationalist Party. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2024] HKCFI 1176).
5. By a Notice of Decision dated 30 November 2017, the Director rejected the Applicant’s non-refoulement claim on the remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).
6. The Applicant appealed the Director’s Decision to the Board. On 1 November 2018, the Applicant attended a hearing before the Board and gave oral evidence at the hearing. On 15 February 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §8 of the CALL-1 Form, as follows:
“In its decision the Board found material inconsistencies evasiveness and discrepancies in the Applicant’s evidence that it did not consider him to be a truthful witness or that he had told the truth about his claim that it doubted the credibility of his claim of fear of harm from the local AL people that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than 5 years later until he was arrested by police, and that even if his claim of threats from the local AL supporters or the families of the victims to kill him in revenge for the bombing incident were true that it is not accepted after all these years since he left the country that there would still be any adverse interest in him, and that in any event in the absence of any official involvement that state or police protection would be available to him upon his return to Bangladesh as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”
7. On 4 March 2019, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision. No ground of judicial review was given in the Form 86. In his supporting affirmation filed on the same date, he repeated the factual basis of his non-refoulement claim.
THE JUDGE’S DECISION
8. On 30 April 2024, the Judge gave a decision refusing to grant the Applicant leave to apply for judicial review, for the following reasons:
“[11] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 23 – 39 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.
[12] Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong…
[13] In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”
9. On 16 July 2024, the Applicant applied by summons for an extension of time to appeal against the Order. By then, he was over two months late to lodge his appeal. On 12 September 2024, the Judge refused the Applicant’s application, holding that the Applicant had failed to provide a good reason for his delay, and there was no prospect of success in his intended appeal ([2024] HKCFI 2317).
THIS APPLICATION
10. By a summons taken out on 21 October 2024 in the Court of Appeal, the Applicant applied for leave to appeal out of time against the Judge’s order of 12 September 2024. No ground of appeal was given in the summons. In his supporting affirmation, the Applicant stated that he did not agree with the court’s decision, and repeated that he would be killed by his enemies if he returned to his home country.
11. In his 5-page written submissions lodged on 4 November 2024, the Applicant alleged, inter alia, that:
(1) The Judge did not apply the principle of irrationality to the decisions of the Director and the Board[5].
(2) The Judge did not apply high standards of fairness[6].
(3) The Judge did not apply the principle of procedural fairness, as the Director and the Board were required to give reasons to justify their decisions[7].
(4) The Judge did not carefully consider the problems he would face in Bangladesh[8].
(5) The Judge’s decision was unreasonable[9].
(6) The Board failed to give him a sufficient chance to provide evidence[10].
(7) The Board relied on unofficial and hearsay materials[11].
DISCUSSION
12. Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at §§3-8, we shall treat the present application as a renewed application for an extension of time to appeal against the Order.
13. In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
14. We agree with the Judge that the length of the Applicant’s delay is substantial and inordinate. As observed by the Judge, the CALL-1 Form and the Order were sent on the same day to the Applicant’s last reported address by registered post without being returned through the undelivered post. In the absence of any evidence to corroborate his assertion that he did not get any letter from the court, the Applicant has given no good or valid explanation for his serious delay.
15. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
16. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).
17. Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the Board’s Decision is shown in the present case.
18. The Applicant’s complaints in his written submissions are all general assertions without particulars, and cannot constitute any valid grounds of appeal. The Board dismissed the Applicant’s appeal essentially because of the Board’s adverse assessment of the plausibility and credibility of the Applicant’s case and evidence. This is a matter primarily within the province of the Board. The Applicant has failed to point to or show any error in the Judge’s decision of 30 April 2024, or raise any viable ground of appeal against the Order.
19. There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.
DISPOSITION
20. The Applicant’s summons taken out on 21 October 2024 is dismissed.
(Godfrey Lam)
Justice of Appeal
|
(Anderson Chow)
Justice of Appeal
|
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] 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.
[5] The Applicant’s Written Submissions, §§1, 12 and 13.
[6] The Applicant’s Written Submissions, §§2, 3 and 10.
[7] The Applicant’s Written Submissions, §4.
[8] The Applicant’s Written Submissions, §§5 and 6.
[9] The Applicant’s Written Submissions, §7.
[10] The Applicant’s Written Submissions, §9.
[11] The Applicant’s Written Submissions, §11.
|