MD MOJAMMAL ALIAS MD MOJMMAL ALIAS MOJAMMAL v. MRS SYDELLE MULING, ESQ., TORTURE CLAIMS APPEAL BOARD

CAMP 262/2020

[2021] HKCA 1202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 262 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1279 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 9 June 2020, Deputy High Court Judge Bruno Chan 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 protection claim[1].

2.  On 28 July 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 23 June 2020.  The application was dismissed by the judge on 19 November 2020[2].

3.  On 30 December 2020, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal against the decision of the judge dated 9 June 2020.

4.  The applicant is a national of Bangladesh.  He is 42 years old.  He arrived in Hong Kong on 28 May 2006 as a visitor and subsequently overstayed.  He was arrested by the police on 18 November 2009.  He raised a torture claim on 20 November 2009 which was rejected by the Director of Immigration (“the Director”) on 14 January 2013.  He then lodged a non-refoulement claim on 11 July 2013.  His claim was made on the basis that he will be harmed or killed by a fellow villager due to a land dispute if he returns to Bangladesh.

The Director’s decision

5.  By a Notice of Decision dated 17 October 2017, the Director rejected the applicant’s claim on BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].  The applicant’s claim on torture risk[6] was not reviewed as the applicant’s torture claim had already been rejected by the Director previously.

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 26 February 2018.  The Board found significant inconsistencies in the applicant’s evidence and considered that the applicant is not a witness of truth.  It did not accept that the applicant had experienced any problems or harm in Bangladesh because of any land dispute and rejected the fundamental basis of the applicant’s claim that he would face any form of harm upon his return to Bangladesh.  Therefore, the appeal was dismissed by the Board on 22 June 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 4 July 2018 for leave to apply for judicial review against the decision of the Board.  He put forward the following grounds for his intended challenge:

(1)  the adjudicator misdirected himself on the law by considering that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there is a risk of torture in the future;

(2)  the adjudicator failed to carry out sufficient research and inquiry into the country of origin information (“COI”) so that the dismissal of the applicant’s case was founded upon an unfair procedure;

(3)  the adjudicator failed to put any weight on the relevant COI, cherry-picked the COI which is of little or no relevance, relied on outdated COI and arrived at an unreasonable decision;

(4)  the adjudicator failed to evaluate whether there exists in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights;

(5)  the adjudicator failed to assess whether state protection exists in Bangladesh under the extended meaning and misdirected himself on the law by erroneously stating what the extended meaning of state protection was;

(6)  the adjudicator took into account irrelevant considerations or considerations that were incorrect or facts not reasonably inferred and failed to take into account facts and inferences that were favourable to the applicant;

(7)  the failure to call for psychological and psychiatric evaluation and reports amounts to procedural impropriety;

(8)  the adjudicator applied the incorrect standard of proof in the decision; and

(9)  the failures of the assigned duty lawyer resulted in a lack of and/or insufficient legal representation for the applicant.

The judge’s decision

8.  The applicant attended the hearing before DHCJ Bruno Chan on 15 November 2019.  The judge considered there is nothing amiss arising from the alleged problems relating to the hearing bundle in the appeal before the Board as most of the documents in the bundle had previously been made available to the applicant when he still had legal representation and he should be well familiar with the documents, also he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal at the oral hearing before the Board.

9.  The judge further held that the rest of the applicant’s grounds are not reasonably arguable as they are just broad and vague assertions without particulars, specifics or elaboration and the applicant failed to identify with sufficient particularity any error of law or procedural unfairness in the proceedings before the Director or the Board or in their decisions.  The judge concluded there is no prospect of success in the intended judicial review and dismissed the leave application on 9 June 2020.

Grounds of intended appeal

10.  The applicant stated his grounds of appeal[7] in his written submissions which may be summarized as follows:

(1)  The Awami League is the ruling party which kills thousands of people from the opposition.  The applicant is one of those from the opposition but is lucky to flee from Bangladesh to Hong Kong.

(2)  He told his true story to the Director and the Board but they rejected his claim.

Analysis and disposition

11.  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.

12.  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 order was made on 9 June 2020.  The applicant took out a summons at the court below on 28 July 2020.  He was late by five weeks.

13.  The applicant explained at the hearing at the court below that he failed to lodge his appeal in time as he thought that the court was closed due to the Covid-19 pandemic.  This is not a justifiable reason for the delay as the applicant simply relied on his own mistaken belief without making any effort to check with the court.  As the delay is inexcusable, the applicant 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.

14.  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.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  In the present application, the applicant’s grounds of appeal are just bare assertions without merits or evidence in support.  In particular, he has failed to show that the judge was wrong in refusing his leave application. He also failed to adduce any evidence to refute the Board’s findings.

16.  For the above reasons, there is no prospect of success in his intended appeal.  We therefore refuse to extend time to appeal against the judge’s decision of 9 June 2020 and dismiss the summons filed on 30 December 2020.