RAHMAN MAJIBAR v. TORTURE CLAIMS APPEAL BOARD

CAMP 82/2019

[2019] HKCA 985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 82 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 151 OF 2017)

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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 22 September 2017, Deputy High Court Judge Woodcock refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.  On 21 December 2018, the applicant applied for leave to appeal against the aforesaid decision of Deputy High Court Judge Woodcock out of time.  His application was refused by Deputy High Court Judge Bruno Chan on 7 May 2019[2].

3.  The applicant filed a renewed application with the Court of Appeal on 8 May 2019 for leave to appeal against the decision of Deputy High Court Judge Bruno Chan.

4.  The applicant is a national of Bangladesh.  He came to Hong Kong illegally on 9 January 2014 and was arrested two days later.  He lodged a non-refoulement claim on 13 January 2014 on the basis that if he were to return to Bangladesh, he would be harmed or killed by people from the Awami League (“AL”) because he had refused to join their party.

The Director’s decisions

5.  By a Notice of Decision dated 5 February 2016 and a Notice of Further Decision dated 21 November 2016, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

The Board’s decision

6.  The applicant attended the hearing of his appeal against the Director’s decisions before the Board on 14 December 2016 but chose to remain silent at the hearing.  The Board found that the applicant had never been assaulted, let alone having suffered severe pain and physical or mental suffering reaching the minimum level of severity.  It was also found that there are internal relocation alternatives in Bangladesh where the applicant can live safely without undue hardship and state protection is also available.  The Board decided that the applicant failed to establish his claim and dismissed the appeal on 24 March 2017.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 21 April 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board[7].

The judge’s decision

8.  Having considered the papers and the applicant’s grounds, Deputy High Court Judge Woodcock found that the decisions of the Director and the Board are without fault and many of the applicant’s allegations are not supported or substantiated in the grounds.  She also found the applicant’s grounds do not show there was any error of law by the adjudicator and there was no evidence of procedural unfairness or failure to adhere to a high standard of fairness.  The leave application was refused on 22 September 2017 accordingly.

The grounds of appeal

9.  Although the applicant stated in the present summons that he is seeking leave to appeal against the order of Deputy High Court Judge Bruno Chan dated 7 May 2019, he is in effect seeking leave to appeal against the order of Deputy High Court Judge Woodcock dated 22 September 2017.

10.  In the supporting affirmation filed on 8 May 2019, the applicant stated his grounds of appeal as follows:

(1) Deputy High Court Judge Bruno Chan was wrong in law in holding that there was no state acquiescence or involvement;

(2) the judge failed to provide detailed reason in support of his decision.

11.  In the applicant’s written submissions, (1) he stressed that high standards of fairness are required in the determination of a torture claim and (2) he submitted that the adjudicator erred in approaching the matter by simply trying to see whether he could find fault with the decision of the Immigration Officer but did not consider matters such as the country conditions[8].

Analysis and disposition

12.  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.

13.  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 to apply for judicial review within 14 days after such order. The order of Deputy High Court Judge Woodcock was made on 22 September 2017.  The applicant only took out a summons in the court below on 21 December 2018 to apply for leave to appeal out of time.  He was late by more than 14 months.  His delay is inordinate.

14.  In his affirmation filed on 21 December 2018 under HCAL151/2017, the applicant explained that his delay was caused by the fact that he was not well equipped with the procedural knowledge on how the civil appeal is filed and did not have the requisite means to hire a legal representative.  We do not regard these reasons as excusable for the very substantial and inordinate delay.  In the circumstances, we would consider if he has a good prospect of success in the intended appeal[9].

15.  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 the court to examine the decision of the Board afresh as if it is a fresh application for judicial review[10].

16.  The applicant’s intended grounds of appeal and his submissions are not substantiated by facts.  He failed to demonstrate that Deputy High Court Judge Woodcock had made any errors of law or had failed to take account of relevant matters or was otherwise plainly wrong. Deputy High Court Judge Bruno Chan is correct in regarding the intended appeal as hopeless.

17.  We dismiss the summons filed on 8 May 2019 as the applicant has failed to show that he has any prospect of success in the intended appeal.

18.  Further, as this renewed application is entirely without merit, we make an order under Order 59 rule 2A(8) of the Rules of the High Court that no party may under rule 2A(7) request the determination to be considered at an oral hearing inter partes.