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CAMP 14/2022
[2022] HKCA 991
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 14 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 2600 OF 2018)
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BETWEEN
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MIRAJ |
Applicant |
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TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS
PETITION OFFICE
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Putative
Respondent |
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DIRECTOR OF IMMIGRATION |
Putative
Interested Party |
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Before: Hon Yuen and Chow JJA in Court
Date of Written Submissions: 25 January 2022
Date of Judgment: 26 July 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 11 January 2022, the Applicant took out a summons with a supporting affirmation applying for “leave to appeal” against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 29 July 2020 (“the Order”) refusing to grant him leave to apply for judicial review.
2. The intended judicial review was against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 24 September 2018, which dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 August 2017.
3. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
4. The Applicant is a national of Bangladesh. He entered Hong Kong illegally on 25 February 2014, and was arrested by the police on 26 February 2014. He lodged a non-refoulement claim on 2 March 2014, alleging that if refouled, his life would be in danger due to a land dispute with his uncle/cousins. Details of the Applicant’s claim have been summarised by the Judge at §§1-7 of the CALL-1 Form ([2020] HKCFI 1741).
5. By a Notice of Decision dated 30 August 2017, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
6. The Applicant appealed the Director’s decision to the Board. On 24 September 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”). The Board found that there was no real risk of harm as claimed by the Applicant if he returned to Bangladesh, and no evidence to show that the Bangladesh government was unwilling and/or unable to provide effective protection to him. It also found that internal relocation was an option open to the Applicant.
JUDGE’S DECISION
7. On 19 November 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.
8. On 29 July 2020, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“11. The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decision to him. The interpreter at the Board had assisted him to understand the Board’s Decision.
12. I put the Board’s findings to him and asked him if he had any comments. He said that he disagreed with the Board’s Decision.
13. I do not find the Board’s Decision unreasonable, irrational or procedurally irregular.
14. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.
15. The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.
16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held
‘13. (1) … Assessment of evidence and COI 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.’
17. As to his grounds in support of this application, grounds (1) to (3) and (14) are inconsistent with what he said in court. Grounds (4) to (13) are his opinions without any evidence or particular in support of them. Ground (15) was not raised before the Board at the hearing and ground (16) fails in light of Re Ahmed Syed Rafiq.”
9. On 4 November 2021, the Judge refused the Applicant’s application by summons dated 5 October 2020 for an extension of time to appeal.
THIS APPLICATION
10. By a summons taken out on 11 January 2022, the Applicant applied for “leave to appeal” against the Order. In his supporting affirmation filed on the same date, the Applicant wrote that he had missed the deadline to appeal within 14 days from the date of the judgment but there was nothing that he could do to prevent the document from being lost in the post.
11. In his 6-page written submissions dated 25 January 2022, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims. He claimed that the Board did not act in a procedurally fair manner in dealing with his application and failed to properly assess his credibility.
DISCUSSION
12. Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.
13. In deciding whether to extend time to appeal, this 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. The prospect of success of an intended appeal is important. The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
15. The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.
16. The Applicant has failed to point to or substantiate any alleged error in the Judge’s decision of 29 July 2020 refusing to grant him leave to apply for judicial review, and has failed to raise any viable ground of appeal against the Order.
17. There is no prospect of success in the Applicant’s intended appeal.
DISPOSITION
18. The application for extension of time to appeal is refused, and the Applicant’s summons of 11 January 2022 is dismissed.
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(Anderson Chow) |
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Justice of Appeal |
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 her 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 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.
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