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

CAMP 458/2021

[2022] HKCA 304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 458 OF 2021

(ON APPEAL FROM HCAL NO 1612 OF 2019)

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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.  By a summons dated 15 October 2021, the Applicant applied to this Court for an extension of time to appeal against the decision of Deputy High Court Judge P Li (“the Judge”)  on 9 February 2021 refusing leave to the Applicant to apply for judicial review. On 31 August 2021, the Judge refused to grant the Applicant an extension of time to appeal.

2.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.  The Applicant is a national of Bangladesh.  He was refused entry to Hong Kong on 26 October 2009 and filed a torture claim on the same day, which was later assessed by the Director of Immigration (“the Director”)  as a non-refoulement claim.  Details of the Applicant’s claim have been summarised by the Judge at §§3-14 of the CALL-1 Form ([2021] HKCFI 270):

“[3] The applicant was born on 27/2/1982 in Aut Shahi, Munshigonj District, Bangladesh. He attained class 6 level. He was single. He was a Muslim. His parents and siblings lived in Bangladesh. His family were all supporters of the Bangladesh Nationalist Party (‘BNP’).

[4] About 2006, he established a garment business in the home district. He was appointed the publicity secretary of the youth wing of BNP from 2002-2004. He campaigned for the leaders of BNP.

[5] About January 2007, his friend (‘Munir’)  had a land dispute with a Hindu family. It developed into a fight. Some BNP supporters joined his side. Some Awami League supporters joined the opposite side.

[6] One week after the fight, someone throw acid on a female member of that Hindu family. The Hindu family filed a report accusing him and two friends of the attack. He immediately fled to Kishoreganj. His friends were arrested by the police. The police could not locate him. He stayed at different districts for over a year. He was safe.

[7] Around February 2008, after visiting his parents, he went to Dhaka. He changed lodging every 4-5 days to avoid detection in Dhaka. He was safe.

[8] In 2009, he learned that the charge against his friends were dismissed. He then returned to his father and stayed for one week. He was in fear of the Awami League (‘AL’)  supporters. He decided to stay at Dhaka.

[9] Later in 2009, Barek demanded his family to pay 2 million takas or else Barek would kill him. Barek was once a district secretary of AL. His father reported to the police who refused to register the complaint. Barek even damaged the kitchen of his house and threatened to kill him. His father turned to another police station but in vain. He thought the police were corrupt and only work for the ruling party. However, Barek and his group did not harm his family.

[10] Around August 2009, he returned home to visit his sick mother. He was arrested by the police at the bus station. He was taken back home. The police searched his home and found a revolver. He was detained and assaulted by officers with batons and kicks. He suspected that it was Barek who framed him up. He was granted bail in October 2009 after being detained for 2 months. He did not complaint about the police brutality as it was useless.

[11] On the advice of his father, he left Bangladesh by air on 25/10/2009. He bribed the immigration officer at the airport. He arrived at Hong Kong the next day and lodged a torture claim with the assistance of his lawyer.

[12] In Hong Kong, he contacted his father who told him the local police came to look for him at home. The AL supporters also vandalized his home. He had stopped contacting his father since mid-2013.

[13] He thought the police would not help. The government authorities would not help too. He could not complaint. He would not have a fair trial as AL was in power. He could not relocate to Dhaka or any other part. AL was in power and would inflict harm to BNP members.

[14] He was in fear that Barek and AL members would harm or kill him if he returned to Bangladesh. He was also in fear of the false charge for possession of an illegal firearm against him.”

4.  By a Notice of Decision dated 26 August 2015 and Notice of Further Decision dated 26 April 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decisions”).

5.  The Applicant appealed the Director’s Decisions to the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”). The Board rejected the Applicant’s appeal on 2 March 2017 in relation to risk of torture, BOR 3 risk, and persecution risk (having heard the Applicant on 16 August 2016), and on 31 May 2019 in relation to BOR 2 risk, and confirmed the Director’s Decisions (“the Board’s Decisions”).  The Board considered the Applicant’s evidence to be vague and unreliable, and found against the Applicant in relation to the claimed risk of harm or injury.  The Board also considered that there was no significant additional evidence in relation to his claim based on BOR 2 risk, and there was no need for another oral hearing of his appeal in relation to BOR 2 risk.

THE JUDGE’S DECISION

6.  The Applicant filed a Form 86 on 13 June 2019 seeking leave to apply for judicial review of the Board’s Decisions.  In his affirmation in support, the Applicant complained that the adjudicator was unreasonable not to fix an oral hearing of his appeal on the BOR 2 claim.  He also complained that the lawyer from the Duty Lawyer Service could not understand his case. 

7.  On 9 February 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §§30-36 of Form CALL-1, the Judge stated as follows:

“[30] The adjudicator had considered the written submission by the applicant before deciding whether to hold an oral hearing for the BOR 2 claim. Given that the applicant had only repeated the same background as he did initially, coupled with the fact that there was an oral hearing on 16/8/2016, I agree with the adjudicator that there was no need for an oral hearing in relation to the appeal of the BOR 2 claim.

[31] For the complaint against the DLS, the applicant was assisted by a lawyer from the DLS in compiling the NCF and submitting relevant documents. All the content was translated to him by an interpreter. He signed to confirm its accuracy. The applicant did not give any detail why his lawyer was not helpful. I do not accept this complaint.

[32] The Director had considered his claims based on the NCF and the screening interview. The Director had given detailed reasons. I do not accept that the Director had not truly considered his claim.

[33] I understand that the appeal bundle consisted of his NCF and documents submitted by him. Besides, the most important document was the decision of the Director. Under normal circumstances, that decision was translated to him by the DLS. Most of the other documents in the appeal bundle were translated to him at the time of compilation. I do not accept that he could not understand the appeal bundle.

[34] The applicant mentioned that his younger brother had disappeared in January 2017. This happened after the assessment by the Director and the TCAB. It is inappropriate for this court to consider this incident at the leave application. In any event, there was little detail. It is a bare assertion and difficult for any court or the lower tribunals to deal with it.

[35] As to the possession of illegal firearm charge, the documents submitted by the applicant show that the judicial proceedings had commenced and handled by the Bangladeshi court. The arrest warrant was issued formally as the applicant failed to appear on the date of the hearing (10/12/2009). While the applicant maintained that it was a fabrication, the documents show that the charge was formally laid. The fact that the applicant maintained a not guilty stance cannot support his claim that it is a fabrication. It is a matter to be determined by the Bangladeshi court.

[36] In my judgment, there is no error of law or procedure. The decisions of the TCAB and Director are reasonable.”

THE JUDGE’S EXTENSION DECISION

8.  Under Order 53, Rule 3(4)  of the RHC, the Applicant may appeal against the Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed or served by the Applicant within the 14-day period. 

9.  The Applicant took out a summons on 19 March 2021 for an extension of time to appeal against the refusal of leave.  In his affirmation, the Applicant asserted that he did not get any letter from the court.

10.  The Judge agreed with the Board’s Decisions and found that the Applicant’s evidence was not credible.  The Judge also considered that the Applicant’s intended judicial review had no merit.

11.  Accordingly, on 31 August 2021, the Judge refused to extend time for the Applicant’s appeal and dismissed his application.

THIS APPLICATION

12.  By a summons taken out on 15 October 2021, the Applicant applied to this Court for leave to appeal against the Judge’s decision dated 9 February 2021.  In his summons and supporting affirmation filed 15 October 2021, the Applicant asked for an extension of time to appeal since the High Court refused his application for leave to apply for judicial review.

13.  In his 3-page written submissions dated 29 October 2021, the Applicant stated that his life was still in danger if he returned to Bangladesh, and he did not receive the letter from the High Court regarding the dismissal of his leave application.

DISCUSSION

14.  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.

15.  The prospect of success of the 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.

16.  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.

17.  We consider the delay of 4 weeks to be substantial and the Applicant has not provided any good explanation for the delay.  The letter regarding the Judge’s decision to dismiss the Applicant’s leave application was mailed on 9 February 2021 to the same address as stated in the Applicant’s summons, and there was no return of mail.  As regards the chances of the appeal, the Applicant has not shown any errors in the Judge’s decision to refuse to grant leave to apply for judicial review, or viable grounds of appeal in his summons or supporting affirmation or written submissions.

18.  There is no reasonable prospect of success in the Applicant’s intended appeal.

DISPOSITION

19.  The application for extension of time to appeal is refused, and the Applicant’s summons of 15 October 2021 is dismissed.