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

CAMP 220/2021

[2021] HKCA 1986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 220 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2268 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 21 April 2021, Deputy High Court Judge To refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1] (“the Judge’s Decision”).

2.  On 27 May 2021, the applicant filed a summons for leave to appeal out of time against the Judge’s Decision.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal against the judge’s order refusing leave within 14 days after such refusal.  Thus, the time for filing his appeal ended on 5 May 2021.  He was more than 3 weeks out of time.

3.  On 10 June 2021, DHCJ To refused to grant extension of time to the applicant[2] (“the Extension of Time Decision”).  

4.  On 17 June 2021, the applicant filed the present application with the Court of Appeal seeking to renew his application to appeal the Judge’s Decision out of time.

5.  The applicant is a national of Bangladesh.  He is 35 years old.  He last entered Hong Kong on 8 August 2015 as a visitor.  He did not leave when his visa expired.  He surrendered to the Immigration Department on 24 August 2015 and lodged a non-refoulement claim on 5 May 2016.  His claim was made on the basis that, if refouled, he would be harmed or killed by Sheikh Selim (“SS”) who was a member of parliament of the Awami League (“AL”).

The Director’s Decision

6.  By a Notice of Decision dated 12 October 2017 (“the Director’s Decision”), the Director of Immigration rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] , persecution risk[5] and BOR 2 risk[6].

The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board.  On 11 June 2018, the Board conducted an oral hearing for his case, during which the applicant gave oral evidence with the assistance of an interpreter. 

8.  The Board found that the applicant’s oral evidence and the evidence in his non-refoulement claim form was generally consistent and accepted his account of events.  However, on the applicant’s own evidence, the Board observed that the injuries he suffered were minor and had not attained a minimum level of severity.  It also showed that AL and SS had no intention to kill him if refouled.  Having considered the relevant country of origin information (“COI”), the Board concluded that the state protection and internal relocation alternatives were available to the applicant.  As a result, it rejected the applicant’s claim on all applicable grounds and dismissed his appeal on 10 October 2018 (“the Board’s Decision”).

The Judge’s Decision

9.  The applicant filed a Form 86 and an affirmation on 19 October 2018 for leave to apply for judicial review against the Board’s Decision.  In his Form 86 and supporting affirmation, the applicant advanced the following grounds of review, which could be summarized as follows:

(1)  The Board had unlawfully fettered its discretion;

(2)  The Board acted in a procedurally unfair manner;

(3)  The Board’s Decision was unreasonable or irrational in the public law sense and was a result of procedural errors or unfairness;

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  The hearing bundles were given to the applicant late, which deprived him from having sufficient time to prepare;

(6)  The Board relied on source of news that was not officially recognized or was simply hearsay.

10.  After hearing the applicant, DHCJ To rejected the applicant’s leave application.  The judge held that high standard of fairness did not prescribe that the applicant would be entitled to an absolute right of legal representation at all stages of the proceedings.  He observed that the applicant was legally represented by the Duty Lawyer Services and had the assistance of an interpreter before the Board.  The appeal bundle consisted of documents that the applicant was familiar with in the proceedings below. Taking a global view of the circumstances, the judge found nothing amiss regarding the non-availability of legal representation before the Board or the interpretation services provided to the applicant.  As to the applicant’s complaints about the Board’s reliance on the COI and other general allegations, the judge held that these were all unreliable general assertions and that there were no errors of law or procedure, unfairness or irrationality in the Board’s Decision.

Extension of time application in the court below

11.  On 27 May 2021, the applicant took out a summons seeking to appeal the Judge’s Decision.  His reason for the delay was that he did not get the judge’s order on time.  In his supporting affirmation filed on the same date, he advanced nine grounds as intended grounds of appeal. 

12.  DHCJ To did not accept the applicant’s explanation[7] and proceeded to consider the applicant’s intended grounds of appeal as reproduced at §9 of the Extension of Time Decision.  After considering the applicant’s intended grounds of appeal, the judge concluded that whilst the delay itself would not be fatal to his application, the applicant’s intended grounds of appeal had no merits.  Thus DHCJ To refused to extend time to appeal to the applicant.

Renewed application to appeal out of time

13.  By way of a summons dated 17 June 2021 and a supporting affirmation filed on the same date, the applicant renewed his application for extension of time before the Court of Appeal.  In his supporting affirmation, he simply stated that the judge’s refusal to extend time was unacceptable and unexplainable and repeated his claim. 

14.  In his written submissions of 2 July 2021, he advanced the following grounds:

(1)  The judge did not analyse the applicant’s extension of time summons properly;

(2)  The judge erred in law in not applying the principle of irrationality in assessing the Director’s Decision and the Board’s Decision;

(3)  The judge did not follow the principle of high standard of fairness;

(4)  The judge erred in law in not applying the principle of procedural fairness in assessing the Director’s Decision and the Board’s Decision;

(5)  The judge did not exercise greater care on the applicant’s case notwithstanding that he had submitted all the proof for his non-refoulement claim;

(6)  The judge did not give the applicant sufficient chance to arrange for relevant evidence. 

15.  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.

16.  The applicant’s delay of more than three weeks was not insignificant in the context of a statutory time limit of 14 days.  His explanation of not receiving the Judge’s Decision seems plausible as it appeared from the court records that the letter dated 22 April 2021 sent to the applicant by the court was returned on 13 May 2021 because the address provided by the applicant was incomplete.  However, even if the court is minded to accept his explanation for delay, the applicant still needs to show that his intended appeal has a reasonable prospect of success. 

17.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

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.  It is not the role of the appeal court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

19.  While the applicant advanced several grounds of appeal against the Judge’s Decision, all of them were general assertions without pinpointing any specific errors in the Judge’s Decision.  In our view, DHCJ To had applied the correct legal principles when assessing the Board’s Decision.  At §19 of the Judge’s Decision, he stated that the court would only intervene if the Board had committed any errors of law, procedural unfairness or irrationality.  He had thoroughly explained his reasons for rejecting the applicant’s grounds of review at §§20 to 24 of the Judge’s Decision.  The applicant has simply failed to advance any viable grounds to identify any errors in those reasons.

20.  We are not satisfied that the applicant has any prospect of success in his intended appeal.  It is futile to extend time.  We therefore refuse to grant extension of time to appeal against the Judge’s Decision and dismiss the summons filed on 17 June 2021.