RE JAMAL

CAMP 246/2021

[2021] HKCA 1519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 246 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2457 of 2018)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 8 May 2020 refusing to give him leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of his application.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) refusing his non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 48.  He entered Hong Kong illegally and was arrested by the police on 27 October 2015.  He later raised a non-refoulement claim based on fear of being harmed or killed by people of the Awami League (“AL”) because he was a leader of the Bangladesh National Party (“BNP”) in his village.  The details of the applicant’s claim were set out in the Director’s decision at [6] and the Board’s decision at [18].  We will not repeat them. 

6.  By his decision dated 6 October 2017, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard on 3 July 2018, during which the applicant answered questions from the Board.  By its decision dated 25 October 2018, the Board dismissed the appeal.  The Board considered there was a lot of contradictory and hearsay statements in the applicant’s case.  The Board found there was no evidence to support his case that he was a popular leader for BNP in the area where he lived or that he had been targeted by AL rendering it unsafe for him in Bangladesh.  The Board concluded that the applicant failed to establish he faces a real risk of harm, and that he is not entitled to non-refoulement protection on any of the applicable grounds.

8.  On 5 November 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The Judge heard the application at an oral hearing.  By a Form CALL-1 dated 8 May 2020[5], the Judge refused to give leave to apply for judicial review.  After setting out the applicant’s grounds for seeking relief in [10], the Judge gave his reasons at [11] to [20]. 

9.  In brief, the Judge noted that the applicant confirmed that his interview with the immigration officer and his appeal to the Board were dealt with fairly, and he understood the Director’s decision and the content of the appeal bundle as they had been explained to him by his lawyer and friend.  The Judge therefore rejected the applicant’s complaints about not having time to prepare his appeal, not understanding the appeal bundle, and being confused at the appeal before the Board.  The Judge also rejected as mere assertions, the applicant’s complaints about the Board applying the wrong standard of proof, misdirecting itself on what is required to establish real risk of torture, the use of country of origin information (COI) and the finding on availability of state protection.  The Board further rejected the complaint about lack of legal representation in light of the authorities set out in [10] of his decision.  As to the rest of the applicant’s grounds, they were rejected as being irrelevant or new matters not raised before the Board.                       

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 22 May 2020.

11.  By a summons filed on 2 July 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the papers and by his decision handed down on 5 July 2021[6] refused the application. 

12.  On 9 July 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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. 

14.  The applicant was late by about six weeks.  Both in the application for extension of time before the Judge and in the present application, the applicant had provided no explanation for the delay.  In the absence of satisfactory explanation for the delay, the applicant has to show that his intended appeal enjoys a real prospect of success.           

15.  In considering the merits of the intended appeal, we 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’s decision, 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.  In the present application, the applicant did not set out any ground for the intended appeal in his summons or supporting affirmation.

18.  In his written submission, the applicant stated that (i) he fled his country to come to Hong Kong illegally because his life was unsafe in his country; (ii) the Director and the Board were wrong to find his enemy had no intention to kill him and he could relocate to other parts of Bangladesh; (iii) his family is a freedom fighter and his father had fought for the freedom of Bangladesh and he would never have left his country if his problem was of low-level; and (iv) relocation is not feasibility because his enemy is a big political party and the authorities are corrupt and puppet of AL and would not help him.    

19.  In our view, the arguments put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  The core reason for the Board’s dismissal of the appeal is its rejection of the factual basis of the applicant’s claim as not supported by evidence.  The applicant’s arguments are hardly sufficient to show that the Board had erred in its finding.  Critically, the applicant has failed to identify any error in the Judge’s decision and reasons.  There is therefore no proper basis for this Court to disturb the Judge’ decision.     

20.  We have in any event examined the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  The Judge was correct in finding the intended judicial review has no reasonable prospect of success and refusing to give leave to apply for judicial review.

21.  As the applicant’s intended appeal against the Judge’s refusal of leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 9 July 2021. 

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

[2] This refers to the 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.

[3] 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.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] [2020] HKCFI 722.

[6] [2021] HKCFI 1776.