HOSSAIN MOHAMMAD ALAMGIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 201/2020

[2021] HKCA 627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 201 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1554 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 23 June 2020, Campbell‑Moffat J dismissed the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 18 August 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 7 July 2020.  The application was heard and dismissed by the judge on 28 September 2020[2].

3.  On 30 October 2020, the applicant took out this renewed application for extension of time to appeal against the judge’s decision of 23 June 2020.

4.  The applicant is a national of Bangladesh.  He is 33 years old.  He came to Hong Kong illegally on 14 February 2016 and was arrested by the police on the same day.  The applicant submitted a non‑refoulement claim on 5 March 2016.  His claim was made on the basis that he is in fear of being harmed by a group of Awami League (“AL”) leaders because he is a supporter of the Bangladesh Nationalist Party (“BNP”).

The Director’s decision

5.  By a Notice of Decision dated 19 October 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including BOR 2 risk[3] BOR 3 risk[4], torture risk[5] and persecution risk[6]. 

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.  Because of the significant inconsistencies in the applicant’s evidence, the Board did not accept that the applicant had received the alleged verbal threats and physical attacks from the AL people.  Thus, the Board considered there is no real risk that the applicant will face any of the proscribed forms of harm should he return to Bangladesh.  The Board further found it would be reasonable for the applicant to relocate to another part of Bangladesh such as Gazipur to avoid any harm he fears from the AL people in his home area if he needs to, taking into account the fact that he was an ordinary member of BNP who was engaged in low level activities long time ago.  The Board found that the applicant failed to substantiate his claim on the applicable grounds and dismissed the appeal on 27 July 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 6 August 2018 to seek leave to apply for judicial review against the decision of the Board.  He did not put forward any grounds for his intended challenge.

The judge’s decision

8.  The leave application was considered by Campbell‑Moffat J on paper as the applicant did not request for an oral hearing.  The judge assessed there is no error of law or procedure in the Board’s decision and the Board has adhered to high standards of fairness throughout.  The judge concluded that there is no realistic prospect of success in the intended judicial review and refused to grant leave for judicial review on 23 June 2020.

Grounds of intended appeal

9.  In the present summons, the applicant only stated that he does not agree with the judgment as the judge did not show any reason for refusing his claim.

10.  In his written submissions, he reiterated the problem he may face if he returns to his home country where the AL is the ruling party. 

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 was 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 23 June 2020.  The applicant took out a summons at the court below on 18 August 2020.  He was late by 24 days even when the period of the court’s summer vacation in the month of August was not counted.  The delay is not insubstantial. 

13.  The applicant explained at the hearing before the judge on 28 September 2020 that he did not file the notice of appeal within time as he was feeling ill and did not want to go out because of the pandemic.  He did not provide any medical certificate in support of his explanation and he should have informed the court without delay if there is any valid reason why he could not proceed with his appeal.  His explanation is not acceptable. 

14.  As his 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.

15.  In assessing the merit 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.

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

17.  The applicant’s assertion that the judge did not show any reason for refusing his claim is wholly without basis.  The judge has set out clearly the reasons for her decision in paragraphs 9 to 11 of the judgement dated 23 June 2020.

18.  The applicant failed to show 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.

19.  As the applicant does not have any prospect of success in the intended appeal, we refuse to extend time to appeal and dismiss the summons filed on 30 October 2020.

[1] [2020] HKCFI 1329

[2] [2020] HKCFI 2544

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[6] 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 and its 1967 Protocol.