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

CAMP 326/2023, [2024] HKCA 19

On An Intended Appeal From [2023] HKCFI 1628 &

[2023] HKCFI 2587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 326 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 375 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.  On 13 October 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 23 June 2023 refusing to grant him leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 28 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 31 October 2017 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Bangladesh.  He last entered Hong Kong illegally on 3 January 2015 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by the local supporters of a political party called the Awami League (“AL”)  as he was a supporter of a rival political party called the Bangladesh Nationalist Party (“BNP”). Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2023] HKCFI 1628).

5.  By a Notice of Decision dated 31 October 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 Decision”).

6.  The Applicant appealed the Director’s Decision to the Board.  On 28 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form:

“In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from those local AL supporters that caused him to leave his country to come to Hong Kong, that there was no evidence or reason for them to specifically target him given that he was just an ordinary BNP supporter without holding any official post in the party, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

7.  On 11 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  In the Form 86, he raised various grounds of intended judicial review, which the Judge summarized at §10 of the CALL-1 Form, as follows:

“(1)  Misdirection in law in that the Adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)  Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)  Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5)  Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision;

(9)    Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.”

THE JUDGE’S DECISION

8.  On 23 June 2023, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[11] [The intended grounds of judicial review] are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as he also failed to attend the subsequent hearing of his application without any explanation, I do not find any of his proposed grounds reasonably arguable for his intended challenge or any merits in his intended application.

…

[13] Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him during his screening process before the Director when he had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his appeal hearing before the Board he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board or that this ground is reasonably arguable for his intended challenge either.

[15] Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[16]  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

9.  On 4 September 2023, the Applicant applied by summons for an extension of time to appeal against the Order.  On 12 October 2023, the Judge refused the Applicant’s application, holding that the Applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in his decision or why it might reasonably be argued that the decision was unfair or unreasonable.  The Judge did not see any prospect of success in the Applicant’s intended appeal, and considered that it would be futile to extend time for what appeared to be a hopeless appeal.

THIS APPLICATION

10.  By a summons taken out on 13 October 2023 in the Court of Appeal, the Applicant renewed his application for an extension of time to appeal against the Order.  In the summons, the Applicant alleged that the “High Court” did not give him “justice”, and did not give him a “chance to appeal”.

11.  In his written submissions dated 27 October 2023, the Applicant set out some background information relating to his non-refoulement claim, and alleged that the Adjudicator made many errors, and the Judge failed to consider his arguments before giving judgment.  He also complained about the absence of any oral hearing of his application for leave to apply for judicial review.

DISCUSSION

12.  In deciding whether to extend time to appeal, the 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.

13.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at §14(6)).

15.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  The Applicant’s complaints against the decisions of the Director and the Board are general allegations without particulars.  No error of law or procedural unfairness or irrationality in the decisions of the Director and Board is shown in the present case.

16.  The Applicant’s complaint about the absence of any oral hearing of his application for leave to apply for judicial review has no validity.  An oral hearing of the leave application was scheduled for 6 June 2023.  According to the court’s records, notice of the hearing was sent to the Applicant by ordinary post to his address as stated on the Form 86 and his affirmation of 11 February 2019.  However, the Applicant failed to attend the hearing.  In the circumstances, he can hardly complain about the absence of an oral hearing of the leave application.

17.  The Applicant has failed to identify any error in the Judge’s decision of 23 June 2023, or raise any viable ground of appeal against the Order.

18.  There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

19.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 13 October 2023 is dismissed.