MIA YOUNUS v. TORTURE CLAIMS APPEAL BOARD

CAMP 436/2022, [2023] HKCA 498

On appeal from [2022] HKCFI 803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 436 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2385 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 18 March 2022, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 12 October 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show any reasonable prospect of success in his intended appeal[2].

3.  On 24 October 2022, the applicant filed the present summons with the Court of Appeal to essentially challenge the decision of the court. In light of the decision of Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 18 March 2022.

4.  The applicant is a national of Bangladesh. He is 39 years old. He entered Hong Kong illegally on 13 November 2015 and was arrested by the police on the same day. He subsequently raised his non-refoulement on the basis that he would be ill-treated or even killed by his elder brother and his cousin for refusing to pay them extortion money due to a previous vandalism case in his home village.

5.  By a Notice of Decision dated 31 October 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim under all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5], and persecution risk[6].

6.  The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 25 July 2018. The Board did not find the applicant a reliable witness due to various inconsistencies in his evidence and at times, blatant contradictory testimony at the hearing. For example, when asked about being at the police station when he was attacked, the applicant’s initial account was that he was absent, but later changed his story by asserting that he had been there. The Board found the applicant was making up his answers as he went along and his claims were inherently implausible. Therefore, the Board dismissed the applicant’s appeal on 18 October 2018 and confirmed the Director’s decision.

The judge’s decision

7.  On 29 October 2018, the applicant applied for leave to apply for judicial review against the Board’s decision. The grounds of the applicant’s intended challenge in Form 86 were summarised by the judge as follows:

“(1) Misdirection in law in that the Adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5) Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6) Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9) Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.”

8.  The judge held that these were simply broad and vague assertions without any particulars or specifics or elaborations as to how they apply to the applicant’s case, nor are these grounds explained as to how they are relevant to the applicant’s claim or how the Board had erred. In any event, having examined both the decisions of the Director and the Board with rigorous examination and anxious scrutiny, the judge did not find any error of law or procedural unfairness in their decisions, including their consideration and assessment of the applicant’s claim. In conclusion, the judge found there is no reasonably arguable basis in the applicant’s intended challenge and dismissed the leave application for judicial review on 18 March 2022.

Grounds of appeal

9.  The applicant did not provide any grounds of appeal in his summons or his supporting affirmation except to state that he disagrees with the court’s decision and asserts that the judge did not scrutinize his application. As for his written submissions, the applicant reiterated his problems if he should be returned to his home country and relied on legal principles (such as high standards of fairness are required in the determination of a torture claim on the part of the decision maker) without any elaboration of their applicability to his case.

Analysis and disposition

10.  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.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), 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 18 March 2022. The applicant took out a summons in the court below on 20 May 2022. He was late for more than 5 weeks[7]. This is substantial and no explanation was provided by the applicant.

12.  As the applicant’s delay is inexcusable, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13.  In assessing the merits 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.

14.  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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  The applicant’s grounds are simply bare assertions. There is no evidence adduced by the applicant to refute the Board’s findings. Furthermore, he has not put forward any grounds to reverse the judge’s decision. The applicant does not have any reasonably arguable grounds to challenge the decision of the judge.

16.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 18 March 2022 and dismiss the summons filed on 24 October 2022.