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

CAMP 362/2022

[2023] HKCA 218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 362 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1117 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1.  On 23 June 2022, Deputy High Court Judge K W Lung 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 16 August 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 he has any reasonable prospect of success in his intended appeal[2].

3.  On 21 September 2022, the applicant filed the present summons with the Court of Appeal to challenge the decision of the Court. In light of the decision 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 23 June 2022.

4.  The applicant is a national of Bangladesh. He is 51 years old. He was arrested for illegally remaining in Hong Kong on 14 February 2016 and subsequently raised his non-refoulement claim by way of written representation dated 3 March 2016. The applicant’s claim is on the basis that he would be ill-treated or even killed by members of the Awami League because of his political affiliation with the Bangladesh Nationalist Party (“BNP”), an opposing political party.

5.  By a Notice of Decision dated 11 July 2018, 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 14 January 2019. The Board did not accept the applicant’s claims. The Board held there was no information to substantiate that members of the BNP were being killed by the Awami League as per the information provided in the Country of Information relating to Bangladesh. As mentioned by the judge, although the Board did not expressly affirm the Director’s decision, it can be assumed that the Board agreed with the Director’s decision when the Board rejected the appeal on 15 April 2019.

The judge’s decision

7.  On 26 April 2019, the applicant applied for leave to apply for judicial review against the Board’s decision. There were no grounds provided for seeking relief and in his supporting affirmation, he repeated the background of his case and further made allegations of the dangers he would face if he is returned to Bangladesh. The applicant requested an oral hearing but failed to attend, therefore, the judge dealt with the application on paper.

8.  The judge held there was no ground in support of the applicant’s application. Besides, the judge did not find any error of law or procedural unfairness in the decision of the Board in the 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 23 June 2022.

Grounds of appeal

9.  The applicant did not provide any grounds of appeal in his summons or his supporting affirmation save that he did not get the decision from the Court, which was contended before the judge below in seeking leave to appeal out of time. As the judge stated, the Court’s decision was sent to his last known address on 23 June 2022 according to the record. As for the applicant’s written submissions, he again repeated his contention that he did not receive documents from the Court and his claims of facing risk of harm if he is returned to Bangladesh.

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 23 June 2022. The applicant took out a summons in the court below on 12 July 2022. He was late for 3 days. In view of the short delay, we shall focus on the merits of the application.

12.  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.

13.  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.

14.  The applicant’s grounds are merely bare assertions. More importantly, the applicant failed to identify the particular errors allegedly made by the judge. As to the applicant’s allegations that he did not receive Court documents, this has been dealt with by the judge in his decision dated 16 August 2022 at §5.

15.  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 23 June 2022 and dismiss the summons filed on 21 September 2022.